International Construction Law Review
“COME ON REF!”: BULK, DISPUTED EXPERT REFERRALS OF CONSTRUCTION LITIGATION IN QUEENSLAND
Nick Wray-Jones
Solicitor, DLA Piper
James Aird*
Associate, Allens
In Santos Ltd v Fluor Australia Pty Ltd (No 2) (2020), the Queensland Supreme Court referred all legal and factual issues in a major construction dispute to a panel of three referees, despite strong objections from one of the parties. Prior to Santos, the traditional understanding in Queensland was that courts could not refer the entire substance of proceedings to referees, and that all parties had to consent to a referral. Following Santos, Queensland courts
are now more likely to use referrals to case manage construction litigation with a view to promoting quick, cheap, and efficient dispute resolution. This article analyses the court’s reasoning in Santos, considers key risks associated with these kinds of “Bulk Disputed Referrals” (including whether they are analogous to a forced arbitration), and examines the use of referrals in other Australian and international jurisdictions. We suggest that courts outside Queensland may look to Santos for guidance when case managing major construction disputes, and that as a result Bulk Disputed Referrals may become more common across Australia and overseas.
I. INTRODUCTION
Following amendments to the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the Supreme Court of Queensland confirmed in Santos Ltd v Fluor Australia Pty Ltd (No 2)
1 (Santos) that Queensland courts have the power to refer all of the substantive issues in a proceeding to be heard by expert referees, even if the referral is disputed (in this article, we describe
* This article is an expanded version of the authors’ submission to the Society of Construction Law Australia’s 2022 Brooking Prize competition, which is available to members via the Society’s website: https://www.scl.org.au/ (last accessed 14 August 2023). The authors confirm that neither of them had any involvement in the Santos litigation. This article has been peer-reviewed by the ICLR peer-review board.
1 Santos Ltd v Fluor Australia Pty Ltd and Another (No 2) [2020] QSC 373 (Santos).
Pt 4] “Come On Ref!”: Bulk, Disputed Expert Referrals
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