MCMAHON SERVICES AUSTRALIA PTY LTD v MINISTER FOR INFRASTRUCTURE AND TRANSPORT [2026] SASC 46

Applicant: MCMAHON SERVICES AUSTRALIA PTY LTD Counsel: MR T DUGGAN KC WITH MS M CONDUIT - Solicitor: FINLAYSONS Respondent: MINISTER FOR INFRASTRUCTURE AND TRANSPORT Counsel: MR W AMBROSE WITH MR M GIDDINGS - Solicitor: LK LAW Hearing Date/s: 29/01/2026 File No/s: CIV-25-013183 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MCMAHON SERVICES AUSTRALIA PTY LTD v MINISTER FOR INFRASTRUCTURE AND TRANSPORT [2026] SASC 46 Judgment of the Honourable Auxiliary Justice Dart 16 April 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - ALTERNATIVE DISPUTE RESOLUTION Contract for building work - variations. Parties in dispute about variations and or value of variations - Notices of dispute issued pursuant to relevant contractual provisions - Dispute not resolved by negotiation - Contract provides for the expert determination of disputes - Applicant says expert determination process not appropriate for this dispute. Applicant issued these proceedings. Respondent says the applicant should be held to the contractually agreed process - Respondent seeks a stay of these proceedings. Held: 1. Action to be stayed. Toll (FGCT) Pty Limited v Alphapharm Pty Limited & Ors (2004) 219 CLR 165; Dexus SAHMRI2 Pty Ltd v South Australian Health and Medical Research Institute Ltd & Anor [2025] SASC 61; Sweetpea Petroleum Pty Ltd v Paltar Petroleum [2018] NSWSC 1649; Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] QSC 135; Dance With Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332, considered. -- 1 of 16 -- -- 2 of 16 -- MCMAHON SERVICES AUSTRALIA PTY LTD v MINISTER FOR INFRASTRUCTURE AND TRANSPORT [2026] SASC 46 1 These reasons deal with two interlocutory applications filed in this proceeding. Each of the applicant and respondent have filed an interlocutory application. The parties agreed that the application of the respondent should be the vehicle for dealing with the present issues. That application seeks a stay of these proceedings to permit a contractual dispute resolution process to be undertaken and completed. Background 2 The parties entered into a written contract on or about 5 March 2024. The contract was for construction works at both the Cape Jervis and Penneshaw wharfs used by the SeaLink ferry. The ports were to be significantly upgraded. The contract was in a form commonly used by the respondent for major works. 3 The contract was construct only. The applicant was required to carry out the works in accordance with the design prepared by Wallbridge Gilbert Aztec on behalf of the respondent. There was also a geotechnical report from Jacobs which was relied upon. The applicant was not engaged in any of the design process. 4 A number of issues arose during the course of the project. The applicant has a significant claim for variations. One issue relates to anchor blocks and piling work. It turns out that the site conditions were different to what was represented in the contract documents. The applicant was required to undertake significant additional work to deal with the consequences of the different site conditions. 5 A further claim relates to alternate berthing of the ferry. The existing berthing structure was required to be demolished as part of the project. That led to a need for temporary alternate berthing facilities to be organised for SeaLink. The inability of SeaLink to organise alternate berthing facilities caused delays in the construction work. 6 There is also a claim which relates to the Penneshaw jetty. During the project the parties agreed that a fibre-reinforced polymer jetty would be constructed instead of the originally proposed concrete jetty. The respondent agreed with that approach but additional costs were incurred in constructing the fibre-reinforced polymer jetty. 7 A further claim is made for the additional costs arising because the anchor blocks required at both Cape Jervis and Penneshaw were different than expected based on the design documents. That led to a different form of anchor block binding which required grout curtains. The parties are in dispute about who should pay for the grout curtains. -- 3 of 16 -- [2026] SASC 46 Dart AJ 2 8 Four notices of issue have been sent by the applicant in relation to the various claims. The parties have been unable to resolve the claims by negotiation. The applicant has issued these proceedings to have the Court resolve the disputes. The respondent says that it is not entitled to do so. The contractual arrangements 9 The contractual documents include the General Conditions of Contract GC21, commonly used around the country. Relevantly, the General Conditions set out a method for parties to determine any disputes that arise. If a contractor makes a claim and it is not resolved, it is treated as an unresolved claim. 10 The General Conditions contain a definition of claim: Claim A claimed entitlement of the Contractor in connection with the Contract, in tort, in equity, under any statute, or otherwise. It includes a claimed entitlement to an extension of time or for breach of contract by the Principal. 11 The definition of claim is broad. It goes beyond a simple claim in contract. Contractual intention is determined objectively.1 It seems clear that the parties intended that all disputes arising in connection with the contract would be dealt with by the expert determination process. It is difficult to imagine a more widely drawn definition of claim. So long as the claim relates to the contract, it does not matter if it is a claim in tort, equity or under a statute. The expert is to determine it. The breadth of the definition of claim is an important factor in determining this application. 12 If a claim remains unresolved after negotiations, there is a requirement to give a notice. The General Conditions provide: 69 Notification of Issue 1. The Contractor may dispute an assessment or instruction of the Principal, or seek resolution of an Unresolved Claim, by giving notice to the Principal (with a copy to the Principal’s senior executive named in Contract Information item 7) of an Issue within 28 days after notification of the assessment or instruction, or within 28 days after it becomes an Unresolved Claim. 2. Either party may give notice to the other (with a copy to that party’s senior executive) of an Issue (excluding an Issue referred to in clause 69.1, but including a claim by the Principal) about the meaning or effect of the Contract, or about any matter connected with the Contract, within 28 days after becoming aware of the Issue. 3. Subject to clause 69.6, the parties must follow the Issue resolution procedures in clauses 69, 70 and 71 before either commences litigation or takes similar action. 4. If notice of an Issue under clause 69.1 or 69.2 is given outside the time prescribed by those clauses, the party giving the notice is not entitled to claim or recover interest 1 Toll (FGCT) Pty Limited v Alphapharm Pty Limited & Ors (2004) 219 CLR 165. -- 4 of 16 -- [2026] SASC 46 Dart AJ 3 for the period before the notice was given. This clause does not affect the absolute time bar in clause 61. 5. The Principal is not liable to pay damages (whether in contract, for negligence or otherwise) for making an incorrect assessment or instruction. 6. The Issue resolution procedure in clauses 69, 70 and 71 does not prevent a party from seeking an urgent declaration or injunction from a court. … 71 Expert Determination 1. The representative of the Principal for the purposes of clause 71 is the person named in Contract Information item 52. This person may differ from the Principal’s Authorised Person. 2. If an Issue is to be referred to Expert Determination under clause 70, the parties must endeavour to agree on the Expert to be engaged. If they cannot agree within 28 days after receipt of a notice under clause 70.3, the Expert will be appointed by the Principal in consultation with the person named in Contract Information item 53. The Principal must not nominate: 1. an employee of the Principal or the Contractor; or 2. a person who has been connected with the Works or the Contract. 3. When the person to be the Expert has been agreed or nominated, the Principal, on behalf of both parties, must engage the Expert by a letter of engagement (with a copy to the Contractor) that sets out: 1. the Issues referred to the Expert for determination: 2. the Expert’s fees; 3. the procedure for Expert Determination in Schedule 5 (Expert Determination Procedure); and 4. any other matters which are relevant to the engagement. 4. The cost of the Expert will be borne equally by each of the parties unless the determination is made against the party who referred the Issue to Expert Determination, in which case the Expert may determine that that party will bear all the Expert’s costs in respect of that matter. The Principal and Contractor must bear ther [sic] own costs. 5. The procedure for Expert Determination is set out in Schedule 5 (Expert Determination Procedure). 6. In response to any Issue referred to the Expert by a party, the other party may raise any defence, set-off or cross-claim. 7. Subject to clauses 71.8 and 71.9, the parties must treat each determination of an Expert as final and binding and a party that owes money to the other pursuant to the -- 5 of 16 -- [2026] SASC 46 Dart AJ 4 determination must pay that amount to the other party within 28 days after receiving the determination. 8. Neither party may commence litigation in respect of the matters determined by the Expert unless the determination: 1. does not involve paying a sum of money; or 2. requires one party to pay the other an amount in excess of the amount stated in Contract Information item 54, calculated without having regard to: 1. any interest that may be payable; and 2. any amount that has been paid pursuant to the Building and Construction Industry Security of Payment Act 2009 (SA). 9. Neither party may commence litigation in respect of the matters determined by the Expert unless they do so within 56 days after receiving the determination. 13 The parties attempted to resolve their disputes by negotiation. They implemented a contractual pause for a period of about nine months. The purpose of that was to suspend the time for taking steps while the parties attempted to resolve all of the matters. No resolution was achieved. 14 The parties have agreed on an expert. The expert is Mr Kenneth Martin KC who was formerly a justice of the Supreme Court of Western Australia. His Honour sat mainly in the commercial and managed cases list. He also managed the Court’s arbitration list for a period. Due to the existence of these proceedings, he has not been formerly engaged as yet to undertake the expert determination, but has advised that he is available to do so. 15 The procedure to be followed at the expert determination is set out in Schedule 5: Schedule 5 Expert Determination Procedure Refer to clause 71 of the GC21 General Conditions of Contract a. Questions to be determined by the Expert i. For each Issue, the Expert must determine the following questions, to the extent that they are applicable to the Issue and unless otherwise agreed by the parties: 1. Is there an event, act or omission which gives the claimant a right to compensation, or assists in otherwise resolving the Issue if no compensation is claimed: a. under the Contract, -- 6 of 16 -- [2026] SASC 46 Dart AJ 5 b. for damages for breach of the Contract, or c. otherwise in law? 2. If so: a. what is the event, act or omission? b. on what date did the event, act or omission occur? c. what is the legal right which gives rise to the liability to compensation or resolution otherwise of the Issue? d. is that right extinguished, barred or reduced by any provision of the Contract, estoppel, waiver, accord and satisfaction, set-off, cross- claim or other legal right? 3. In light of the answers to the questions in clauses 1.1.1 and 1.1.2 of this Expert Determination Procedure: a. what compensation, if any, is payable by one party to the other and when did it become payable? b. applying the rate of interest specified in the Contract, what interest, if any, is payable when the Expert determines that compensation? c. if compensation is not claimed, what otherwise is the resolution of the Issue? ii. The Expert must determine, for each Issue, any other questions identified or required by the parties, having regard to the nature of the Issue. b. Submissions i. The procedure for submissions to the Expert is as follows: 1. The party to the Contract which referred the Issue to Expert Determination must make a submission in respect of the Issue, within 15 Business Days after the date of the letter of engagement of the Expert referred to in clause 71.3 of the GC21 General Conditions of Contract. 2. The other party must respond within 15 Business Days after receiving a copy of that submission or such longer period as the other party may reasonably require, having regard to the nature and complexity of the Issue and the volume of the submission. If the parties do not agree on that longer period, the party desiring the longer period may make a submission on the point to the Expert, within the time specified by the Expert, and the Expert will promptly determine any extra time permitted. The response to the submission in clause 2.1.1 may include cross-claims. 3. The party referred to in clause 2.1.1 may reply to the response of the other party, but must do so within 10 Business Days or such longer period as that party may reasonably require (in the same terms as in -- 7 of 16 -- [2026] SASC 46 Dart AJ 6 clause 2.1.2) after receiving the response, and must not raise new matters. 4. The other party may comment on the reply, but must do so within 10 Business Days or such longer period as that party may reasonably require (in the same terms as in clause 2.1.2) after receiving the reply, and must not raise new matters. ii. The Expert must ignore any submission, response, reply, or comment not made within the time given in clause 2.1 of this Expert Determination Procedure, unless the Principal and the Contractor agree otherwise. iii. The Expert may request further information from either party. The request must be in writing, with a time limit for the response. The Expert must send a copy of the request and the response to the other party, and give the other party a reasonable opportunity to comment on the response. iv. All submissions, responses, replies, requests and comments must be in writing. If a party to the Contract gives information to the Expert, it must at the same time give a copy to the other party. All documents to be sent to the Principal under this Expert Determination Procedure must be sent to the relevant person at the relevant postal or other address stated in Contract Information item 52. c. Conference i. The Expert may request a conference with both parties to the Contract. The request must be in writing, setting out the matters to be discussed. ii. The parties agree that such a conference is not to be a hearing which would give anything under this Expert Determination Procedure the character of an arbitration. d. Role of Expert i. The Expert: 1. acts as an Expert and not as an arbitrator; 2. must make its determination on the basis of the submissions of the parties, including documents and witness statements, and the Expert’s own expertise; and 3. must issue a certificate in the form the Expert considers appropriate, stating the Expert’s determination and giving reasons, within 16 weeks, or as otherwise agreed by the parties, after the date of the letter of engagement of the Expert referred to in clause 71.3 of the GC21 General Conditions of Contract. ii. If a certificate issued by the Expert contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures, a mistake in the description of any person, matter or thing, or a defect of form, then the Expert must correct the certificate. -- 8 of 16 -- [2026] SASC 46 Dart AJ 7 16 Simply stated, the present issue is whether the contractually agreed procedure is suitable and appropriate for the determination of the disputes articulated by the applicant. The case law 17 The parties referred the Court to quite a number of cases. A useful starting point is the recent decision of B Doyle J in Dexus SAHMRI2 Pty Ltd v South Australian Health and Medical Research Institute Ltd & Anor.2 His Honour was dealing with a stay application in circumstances where there was an expert determination clause. His Honour said:3 A court which is otherwise regularly seized of jurisdiction to determine a civil dispute may stay the proceeding where the parties to it have agreed to resolve the dispute by an alternative dispute resolution process and where the institution or maintenance of the proceeding involves a breach of an obligation either to participate in that process or to defer litigating until the completion of the process. The stay is a means by which the court effectively restrains the instituting party’s breach of contract. In such a case, the court is not bound to stay its proceedings. The agreement of the parties cannot oust the jurisdiction of the courts. There is a discretion to be exercised, and it is wide. A number of factors are relevant. However, it has been said that the court starts with the proposition that the parties should be held to their agreement unless the party wishing to abandon that obligation can show good reason for that course. As Dixon J said in Huddart Parker Ltd v The Ship Mill Hill, there is a strong bias in favour of maintaining a special bargain of this kind. Or, as the Full Federal Court put it, in Onslow Salt Pty Ltd v Buurabalayji Thalanyji Aboriginal Corporation (‘Onslow’), the consideration that parties should be held to their bargain is a ‘weighty consideration against refusal of a stay’. In Onslow, Besanko, Barker and Colvin JJ said that: A stay will be refused if it would be unjust to deprive a party of its right to have its claim determined judicially. Matters that have been identified as reasons that may, in the particular circumstances, cause the Court to refuse to grant a stay include: (1) the agreed process would deal with only part of the dispute; (2) there would be duplication of effort if the agreed process was to be followed in the particular case; (3) the refusal of a stay would result in a multiplicity of proceedings; (4) in the case of an expert determination, the dispute is inapt for determination by an expert because it does not involve the application of specialist knowledge to matters to be observed or investigated by the expert or its outside the expert’s field of expertise; and 2 [2025] SASC 61. 3 Ibid at [18]-[22]. -- 9 of 16 -- [2026] SASC 46 Dart AJ 8 (5) the agreed procedures are inappropriate or inadequate for the nature of the dispute. A stay will be refused if the particular dispute is not amenable to resolution by the mechanism the parties have chosen. The parties are presumed not to have intended that their dispute should be resolved by someone not qualified for the task, or in some inappropriate manner, and if the mechanism does not provide for procedural fairness or natural justice, that may render it inappropriate for the resolution of some disputes. (footnotes omitted) 18 Each case will, of course, turn on its facts. The applicant submits that the fifth matter referred to in Onslow4 is the relevant issue for the Court in this matter. It says that the expert determination procedure is inappropriate to determine the present dispute between the parties. 19 The applicant put strong reliance on the case of Sweetpea Petroleum Pty Ltd v Paltar Petroleum Limited5 where Ball J declined to stay proceedings to permit an expert determination process to be conducted. Relevantly, his Honour said:6 The dispute in relation to the $69,735,604 raises a number of issues. Most significantly, it raises the question whether Paltar has acted in good faith in serving a Called Sum notice. Sweetpea points to the following matters as evidence that it has not: (a) As at 30 January 2017, no Management Committee for the purposes of the JVOA had been formed; (b) There continued to be a Government moratorium on hydraulic fracking in the Northern Territory which precluded certain drilling activities in the permits; (c) Paltar did not serve any corresponding Called Sum notice on itself as a Participant; and (d) In its dealings with the Northern Territory Department of Primary Industry and Resources in relation to the permits, Paltar described actual and estimated expenditure in relation to those permits in amounts that are much less than the amounts described in the Called Sum notice. Some of these matters may require factual investigation through discovery and the issue of subpoenas. A proper investigation of the issues is also likely to involve cross-examination of witnesses. The expert determination process does not provide suitable mechanisms by which those factual investigations could occur. Moreover, the determination of whether Paltar has breached its duties of good faith is one properly made by a Court, not by an expert. 20 The parties also took the Court to Zeke Services Pty Ltd v Traffic Technologies Ltd.7 In that case Chesterman J said as follows:8 4 Onslow Salt Pty Ltd v Buurabalayji Thalanyji Aboriginal Corporation [2018] FCAFC 118. 5 [2018] NSWSC 1649. 6 [2018] NSWSC 1649 at [36]-[37]. 7 [2005] QSC 135. 8 [2005] QSC 135 at [20]-[25]. -- 10 of 16 -- [2026] SASC 46 Dart AJ 9 The jurisdiction has been recognised in a number of cases, in this country, at first instance: Badgin Nominees Pty Ltd v Oneida Ltd Anor [1998] VSC 118; The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646; Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003] NSWSC 1134. I have not included cases concerning a stay of proceedings where the parties had agreed that disputes between them should be referred to arbitration. Those cases are regulated by the various arbitration statutes. The discretion whether or not to grant the stay is obviously wide. The starting point for a consideration of its exercise is that the parties should be held to their bargain to resolve their dispute in the agreed manner. This factor was emphasised by the House of Lords in Channel Tunnel, by the High Court in Dobbs and Huddart Parker Ltd v The Ship Mill Hill and Her Cargo (1950) 81 CLR 502 (an arbitration case) and by Gillard J in Badgin. However, a stay will not be granted if it would be unjust to deprive the plaintiff of the right to have his claim determined judicially or, to put it slightly differently, if the justice of the case is against staying the proceeding. The party opposing the stay must persuade the court that there is good ground for the exercise of the discretion to allow the action to proceed and so preclude the contractual mode of dispute resolution. The onus is a heavy one. The court should not lightly conclude that the agreed mechanism is inappropriate. Ordinarily I would think that that onus can be discharged only by showing that, in the particular case, the dispute is not amenable to resolution by the mechanism the parties have chosen. This consideration includes the procedure, if any, for which the parties have contracted, and the qualification of the expert or referee to embark upon the determination of the dispute. The parties are presumed not to have intended that their dispute should be resolved by someone not qualified for the task, or in some inappropriate manner. This presumption, based on legal theory, removes any violence to the agreement which refusing the stay would otherwise have done. There is a clear distinction between arbitration and expert determination. The former involves a more or less formal adjudication of the respective cases put before the arbitrator. The court exercises a degree of supervision over the conduct of arbitrations and arbitrators, and minimum standards of procedural fairness are required. There are no such safeguards with respect to expert determination. Lord Esher MR explained the ordinary case of an expert determination In Re An Arbitration Between Dawdy and Hartcup (1885) 15 QBD 426 at 430: ‘… if a man is, on account of his skill … appointed to make a valuation, in such manner that in making it he may, in accordance with the appointment, decide solely by the use of his eyes, his knowledge, and his skill, he is not acting judicially; he is using the skill of a valuer, not of a judge … (He has) to determine the matter by using solely (his) own eyes, and knowledge, and skill.’ Einstein J (at [16]) in Heart Research Institute noted that ‘Expert Determination provides an informal, speedy and effective way of resolving disputes, particularly disputes which are of a specific technical character or specialised kind.’ The most common examples are where a valuer is appointed to fix the rent of demised premises or a man experienced in a particular line of business is called on to fix the price of stock in trade, or say whether it is saleable. It follows that if a dispute is not of a kind which can be determined in an informal way by reference to the specific technical knowledge or the learning of the expert, it may be appropriate to refuse a stay. Complicated disputes of fact or of law may be of such a character. -- 11 of 16 -- [2026] SASC 46 Dart AJ 10 In Cott UK Ltd v FE Barber Ltd (1997) 3 All ER 540 the court refused to stay an action on a contract which contained a clause referring disputes to the determination of an expert on the grounds that: (a) There were no rules identified in the contract or in the expert’s professional association governing the mode of his determination. (b) The expert appointed had no experience in the areas of dispute. (c) The contract gave no guidance as to the rules or principles pursuant to which the expert was to approach his determination. (d) The nature of the dispute itself – a claim for damages for breach of contract – was inapt for determination by an expert. 21 The Court always has a discretion to stay a proceeding. The question in each case is simply whether the facts and circumstances warrant the exercise of the discretion in favour of granting the stay. Consideration 22 I would first like to mention how very well argued this matter was. The submissions, both oral and written, were of a very high standard. That makes it both easier and harder for the judge. Easier because the relevant issues are clearly identified and explained. Harder because each party made compelling submissions as to why the position they advanced was the correct and preferable one. 23 Expert determination clauses, and arbitration clauses for that matter, are commonly found in commercial contracts. The subject contract here was for works to be carried out valued in the many millions of dollars. The claim the applicant wishes to advance for variations and the like is in the amount of $28,805,898. 24 The fact that an expert determination clause is found in a major commercial contract is an indication that the parties intended the process to resolve all of their disputes, no matter how complex. 25 It is usual in matters such as this for submissions to point out the differences between the expert determination process provided for and the processes that would be undertaken if the matter was litigated in a court. The parties chose to agree an expert determination process for commercial reasons. Such a process is quicker, simpler and less expensive. A quicker and simpler process will of course mean that the procedures adopted in an expert determination are less detailed and less involved than would be the case if the matter was being litigated in a court. That is merely a consequence of having agreed to adopt a simpler process for dispute resolution. The differences, of themselves, are not relevant. They only become relevant if it means those differences lead the court to determine that the expert determination process is not an appropriate way to resolve the parties’ dispute. -- 12 of 16 -- [2026] SASC 46 Dart AJ 11 26 The applicant accepts that it has the onus of satisfying the court why it should not be held to its contractual bargain. The cases say it is a heavy onus. The applicant’s pleaded claims fall under the definition of claim in the contract. A summary of the issues put by the applicant on this application is as follows: 1. There is a dispute between the parties as to the nature of the contractual pause agreement. It was a partly oral agreement arising from a meeting. If there is a contest as to facts arising from the pause agreement, the expert determination process cannot resolve that adequately. 2. Generally there is no factual dispute mechanism provided for. 3. There is no provision for the discovery of documents. 4. There is no provision for the rules of natural justice to apply in relation to the determination of the issues. 5. There is limited ability to test the evidence. The procedure is very narrow. 6. The misleading and deceptive conduct and pre-contractual representation claims rely on an oral discussion. The representations are partly in writing and partly oral and partly by conduct. The procedure does not allow those issues to be properly resolved. 7. The consumer law includes a provision which gives a court power to amend contractual terms. An expert cannot do that. 27 The applicant says that a fair summary of this matter is that it is complex and difficult and not suited to the streamlined process of expert determination. 28 In response the respondent says: 1. There is no need for a court-like discovery process and the applicant will suffer no detriment as a result. 2. The expert determination process provides for interrogation of the evidence. 3. The complexity of the dispute is overstated. 4. There is no denial of natural justice by reason of the inability of the applicant to litigate certain aspects of the dispute. 29 The position of the applicant, reduced to its simplest form, is that the expert determination process won’t produce a fair outcome because there is no provision for the making of discovery and no ability to cross-examine witnesses in circumstances where there may be a conflict in the evidence. -- 13 of 16 -- [2026] SASC 46 Dart AJ 12 30 In Dance With Mr D Ltd v Dirty Dancing Investments Pty Ltd9 Hammerschlag J was dealing with similar submissions about the effectiveness of the procedure in an expert determination. His Honour noted:10 So far as the procedures are concerned, none are specified in clause 20. That by no means connotes that the clause will not operate effectively. It is for the expert to proceed as he or she considers. Having regard to the width of clause 20 it does not seem to me that justice requires that the provision be bypassed to afford a party real or perceived forensic advantages which curial proceedings might provide but which expert determination will not. Both parties are in the same position and the expert determination procedure agreed has as its contemplation the quick disposition of the dispute without the procedural complexities of litigation. … The submission that all the plaintiff wants is its day in court, leaves out of account the fact that the plaintiff expressly bargained away that right in a provision with the widest possible operation. 31 This case is slightly different in that the expert determination procedure is provided for in the schedule. The expert, for each referred issue, has to determine: 1. Whether there is an event, act or omission which gives the claimant a right to compensation under the contract, for breach of contract or otherwise in law. 2. Identify the event, act or omission and the legal right which gives rise to the right to compensation. 3. The amount of compensation. 4. Any other questions identified or required by the parties. 32 The party which referred the issue is to make written submissions within 15 days after the expert is engaged. The other party must respond in writing within 15 days of receiving the initiating party’s submissions. The initiating party may file a document in response within 10 business days of receipt of the responding party’s documents. 33 The expert may, in writing, request further information from either party. That request must be given to all parties, and all parties are provided an opportunity to comment on the request. Any party giving information to the expert must copy that information to all other parties. 34 Further, the expert has the capacity to convene a conference with the parties. That must be done in writing setting out the issues to be discussed. 9 [2009] NSWSC 332. 10 Ibid at [83] and [85]. -- 14 of 16 -- [2026] SASC 46 Dart AJ 13 35 The expert is to make his determination on the basis of the submissions of the parties, including documents, witness statements and relying on his own expertise. 36 The applicant says that the absence of a formal discovery procedure is unfair to it. I am not satisfied that that is correct. The expert will need the contractual documents and communications between the parties to determine the matter. Each party will put documents to the expert. If the expert is not satisfied, because of one issue or another, that he has the necessary documents to make a determination he will request further documentation. 37 The second issue relates to the inability to cross-examine witnesses. The applicant bargained away that right when it agreed to the expert determination process. The consequence of agreeing to a streamlined process for the determination of disputes is that the full range of procedures available in litigation in court are not available. I am not satisfied on the fact of this matter that the inability to cross-examine witnesses is so significant as to make the expert determination process inappropriate or unfair. Although this is a complex dispute reduced to core propositions it is simply a case of the applicant saying I entered into a contract to perform particular work but in the result I had to do other or additional work and should be paid compensation for that. The expert can determine that question. 38 The schedule sets out the rules and the procedure with which the expert must comply. It provides procedural fairness. Everything that is before the expert is exchanged between all parties. The parties also have the opportunity to respond to any request made by the expert for further information. I am satisfied that the procedure provided for is fair to each of the parties. 39 In each of the cases referred to above, where a stay was granted, there was a particular aspect of the dispute which the Court found made an expert determination inappropriate. 40 In Dexus it was, in part, the fact that the applicant sought specific performance of an alleged contractual obligation to execute and deliver leases for registration. That was a substantial factor. It was beyond the power of the expert in that matter to make and order for specific performance. Only the Court can make such an order.11 41 In Zeke Services Pty Ltd the expert was a chartered accountant. The Court held that some aspects of the dispute involved a question of mixed law and fact. It found that an accountant was not an appropriate expert to determine such matters.12 11 Paragraph [25] and [26]. 12 Paragraph [35]. -- 15 of 16 -- [2026] SASC 46 Dart AJ 14 42 In Sweetpea Petroleum Pty Ltd there was a question of whether one of the parties had breached a duty of good faith. The Court held that was an issue that should be determined by a Court and not by an expert.13 43 This matter is finely balanced. A party seeking to avoid an expert determination will generally be able to articulate a reason why the court process would be more suitable. Here the definition of dispute is very broad and seems wide enough to encompass everything in the applicant’s statement of claim and, in particular, the prayer for relief. There is one issue about a declaration.14 That can be dealt with by the practical equivalence. On that remedy, a finding that the direction referred to in the paragraph was a variation will provide an appropriate remedy without the need for a declaration. 44 Another relevant consideration in this matter is the experience of the proposed expert. He is a retired Judge. It can properly be assumed that he will know what it is that he needs from the parties to adjudicate fairly on their dispute. There can be no suggestion that the topics that arise in the dispute will fall outside his expertise. 45 Although this is finely balanced, I think parties should be held to their contractual agreement. I will grant a stay. I will hear the parties as to the form of orders that should be made. 13 Paragraph [37]. 14 Statement of Claim, paragraph [379]. -- 16 of 16 --