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)