These pages have already noted the unsuccessful attempt by Abigroup to block Hardesty & Hanover's reference of the first of its fees claims to expert determination, following the procedure set out in the contract for engineering of the Port River Expressway bascule bridges.
The reference duly took place, and the expert appointed by Engineers Australia, Mr Colin Fullerton, determined that H & H were entitled to every cent claimed, rejecting each one of Abigroup's reasons for non-payment. He had previously decided a preliminary issue as to his jurisdiction, at Abigroup's request, and had decided that he did have jurisdiction to proceed.
Abigroup have not honoured the decision, for several reasons, including an assertion that the expert determination clause (drafted by Abigroup themselves!) is void for uncertainty, and that if it is not void, it may not be used to refer disputes serially as they arise, but that a valid reference must include all disputes under the contract. H&H are seeking to enforce the expert's decision in the Supreme Court of South Australia, seeking both summary judgment under the new (2006) court rules, and by way of parallel application, an order for separate and early disposal under the new rules 211 and 119.
The case represents an important test of the new court rules, and how the courts will approach the question of enforcement of expert determinations. Can recalcitrant non-payers derail the procedure by insisting that questions of enforceability must await a full trial, or will the courts implement the sentiments of the Chief Justice's speech at the IAMA conference last year, when he urged his courts to be more flexible and to acknowledge party autonomy in changing an approach that has become "too slow and too expensive".
Certainty, if the courts will not provide prompt enforcement of experts' determinations, that route for obtaining rapid and economical disposal of disputes will be effectively negated. Courts in other jurisdictions have noted how easy it is for a loser in these processes to kick up enough dust for an argument, and have taken a robust view. As Dyson LJ said in relation to a summary judgment enforcement of an adjudicator's decision in England:
The present case shows how easy it is to mount a challenge based on an alleged breach of natural justice. I formed the strong provisional view that the challenge is hopeless. But the fact is that the challenge has been made, and a dispute therefore exists between the parties in relation to it. Thus on Mr Furst's argument, the party who is unsuccessful before the adjudicator has to do no more than assert a breach of the rules of natural justice, or allege that the adjudicator acted impartially, and he will be able to say that there has been no `decision'.
19. At first sight, it is difficult to see why a decision purportedly made by an adjudicator on the dispute that has been referred to him should not be a binding decision...
23. I would hold, therefore, that a decision whose validity is challenged is nevertheless a decision within the meaning of the Act...
(Macob v Morrison)
The summary judgment and rule 211/119 applications have been set down for hearing before Justice Gray on 15th and 16th May at the Supreme Court in Adelaide.