Expert Determination

Expert Determination is a private non-judicial dispute resolution process. Two or more parties agree to submit a question or issue in dispute to an independent expert to determine. The parties participate in the process according to a prescribed procedure. The determiner applies their expertise and provides a determination to the parties that is final and binding upon the parties unless they or the law provide otherwise.

The parties’ rights and obligations are governed by the contract. Unlike arbitration, expert determination is not governed by legislation and there is no statutory immunity for the determiner.

If parties agree to provide for the determination of some or all disputes by reference to an expert, then courts will keep the parties to that bargain as intended. A disgruntled party cannot leap frog the process to litigation. Courts are reluctant to declare such provisions void either for uncertainty or as an attempt to oust the jurisdiction of the court.

In the recent raft of legislative reforms, disputants are now required to show courts, prior to commencing legal proceedings, that they have considered and, where appropriate, participated in reasonable pre-litigation dispute resolution processes such as expert determination.

For further information as to the types of matters Troy has been appointed to determine please see: Expert Determination (Since 2004)

Do you need to update your dispute resolution clauses?

Many commercial agreements include dispute resolution clauses which provide for the President of certain organisations to nominate an expert (or read more

Refusal to sign expert’s retainer agreement will not derail Expert Determination process

When an expert is appointed to prepare a determination or a mediator is appointed to mediate a dispute, a retainer read more

Alleging bias against an expert? People in glass houses shouldn’t throw stones.

There are many reasons why parties provide for the determination of an issue by an independent expert. They usually come read more

Expert Determination Seminar: Your Essential Guide

On 3 September 2012, Troy Peisley is presenting a seminar to practitioners on the topic of Expert Determination. See the read more

Blended mediation: Using facilitative and evaluative approaches to commercial disputes (2012) 23 ADRJ 26

My paper titled Blended mediation: Using facilitative and evaluative approaches to commercial disputes appears in the February 2012 edition of read more

The Arbitration case of Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37

For those involved in domestic commercial arbitration, the recent High Court decision enlivens debate as to the finality of arbitration read more

Impugning Expert Determination (2011) 22 ADRJ 247

My paper titled Impugning expert determination: When does an error justify setting aside a determination? appears in the November 2011 read more

Awaiting on the High Court’s decision in Shoalhaven City Council v Firedam Civil Engineering Pty Limited [2011]

In February 2011, the High Court in Australia heard the case of Shoalhaven City Council v Firedam Civil Engineering Pty read more

The wait and see approach to dispute resolution

The NSW Attorney General, Greg Smith SC, announced on Tuesday, 23 August 2011, that the Government will postpone the introduction read more

Litigation reform: quo vadis?

The litigation game is about to be shaken up. New legislative reforms by the Federal government will change the way read more

Expert Determination (Since 2004)

Since 2004, Troy Peisley has been appointed by, amongst others, the Presidents of the Law Society of NSW and the read more