i-law

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


Pt 4] “Come On Ref!”: Bulk, Disputed Expert Referrals

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