In Biosciences Research Centre P/L v Plenary Research P/L Croft J, the Judge in charge of the Victorian Supreme Court Arbitration List, was considering whether three disputed claims for extension of time and delay costs in relation to delays in completing the Biosciences Research Centre at Latrobe University were to be referred to an independent expert or to arbitration for determination.

The parties were in dispute whether the interpretation of extension of time provisions, in combination with the dispute resolution provisions, had the effect that the expert determination clause was triggered. His Honour considered the authorities relating to principles of contract interpretation, adopting an interpretation guided by :

  1. giving all parts of the agreement operation;
  2. giving business efficacy to the provisions of the agreement;

and concluded that, in relation to the particular provisions before him, that the use of the word “may” resulted in the parties having the choice whether to seek to invoke the provisions.

His Honour rejected an argument that the nature of the particular dispute was a factor in interpreting the dispute resolution provisions, preferring the view that the question is “one to be determined on the basis of proper construction of the contract”, and further concluding, the parties having contemplated extension of time disputes being referred to expert determination, there was little force in an argument that the expert determination process generally was inappropriate in this instance.

His Honour noted recent Australian judgments where the courts had considered, with approval, the expert determination process in construction cases.