Conducting expert determination proceedings
Expert determination is faster and cheaper than arbitration or litigation for disputes that turn on a technical or factual question. It is commonly used in business sale price adjustments, rent reviews, partnership disputes, and construction matters. The process is governed by the parties' agreement, not legislation.
This is an 8-step workflow for conducting expert determination proceedings in Australia. Expert determination is a private, non-judicial process where an independent expert resolves a specific dispute — typically a valuation, technical, or accounting disagreement. The determination is usually binding on the parties.
Before you start
- The contract clause requiring or permitting expert determination
- The specific issue or question to be determined
- Relevant documents, financial records, or technical reports
- Agreement on whether the determination will be binding or non-binding
The workflow
Review the expert determination clause
Analyse the contractual clause to confirm the scope of issues referable to expert determination, whether the determination is binding or advisory, the process for appointing the expert, and any procedural requirements the parties must follow.
Agree on the terms of reference
Draft the terms of reference (or expert determination agreement) setting out the precise question for the expert, the procedural timetable, the expert's powers, how costs will be allocated, and confidentiality obligations.
Select and appoint the expert
Identify a suitable expert with relevant qualifications and experience. If the parties cannot agree, the contract may nominate an appointing body (e.g., the President of the relevant professional body). Ensure the expert provides a conflicts declaration.
Prepare the client's written submission
Draft the client's submission addressing the question for determination. Include the factual background, the client's position, supporting evidence, and the relief sought. Keep it focused — expert determination is meant to be efficient.
Assemble and exchange evidence
Compile the supporting documents — financial statements, valuation reports, technical assessments, witness statements, and any agreed facts. Exchange evidence with the other party in accordance with the agreed timetable.
Respond to the opposing submission
Review the other party's submission and evidence. Prepare a reply submission addressing any new points, challenging inaccurate factual claims, and reinforcing the client's position.
Attend any hearing or site inspection
If the expert convenes a hearing, present the client's case orally. If the dispute involves physical property or infrastructure, attend any site inspection with the expert. Address the expert's questions directly and factually.
Receive and act on the determination
Review the expert's determination when issued. If binding, advise the client on compliance obligations. If the determination contains a manifest error or the expert exceeded jurisdiction, consider whether grounds exist to challenge it in court.
What you will have at the end
A binding (or advisory) expert determination resolving the specific disputed issue, with the client advised on compliance obligations and any available grounds for challenge.
Common issues
- Unclear terms of reference that allow the expert to address issues beyond the intended scope
- Appointing an expert without confirming their independence and absence of conflicts
- Treating the process like litigation — expert determination should be concise and focused
- Not preserving the right to challenge a determination affected by manifest error
- Failing to comply with a binding determination within the required timeframe
Run this workflow on a real matter
Quillio analyses expert determination clauses and helps draft focused submissions and terms of reference. See /practice-areas/litigation-lawyers or start a free trial.
Expert determination is governed by the parties' agreement, not a statutory framework. The availability of judicial review is limited. This workflow covers standard commercial expert determination — specialist areas like construction adjudication have separate statutory regimes.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
Start your free trial