Dispute Resolution Services
Expert Services International can provide dispute resolution services across all Australian jurisdictions, including arbitration, expert determination, mediation, security of payment adjudication, dispute boards and conciliation.
Australian Dispute Resolution Practice
Dispute resolution in Australia is governed by a combination of federal and state legislation. The International Arbitration Act 1974 (Cth) implements the UNCITRAL Model Law for international commercial arbitration. Each state and territory has enacted Commercial Arbitration Acts for domestic arbitration, and separate security of payment legislation providing for statutory adjudication of payment disputes in the construction industry.
Expert Services International can provide arbitration, expert determination, mediation, adjudication, dispute board and conciliation services across all Australian jurisdictions. We maintain current knowledge of the legislative frameworks, institutional rules and procedural requirements applicable in each state and territory.
Australia is a common law jurisdiction with a federal system. Dispute resolution is governed by the International Arbitration Act 1974 (Cth) for international matters and state and territory Commercial Arbitration Acts for domestic arbitration, alongside state-specific security of payment legislation.
Commercial Arbitration
Commercial arbitration has become an increasingly important dispute resolution mechanism for construction and infrastructure disputes across Australia. The International Arbitration Act 1974 (Commonwealth) implements the UNCITRAL Model Law, providing a uniform legal framework that reflects international best practice and facilitates the recognition and enforcement of arbitral awards throughout the world. Each state and territory has enacted equivalent Commercial Arbitration Acts based upon the same Model Law, ensuring consistency across Australia and enabling parties to arbitrate under uniform principles regardless of whether their arbitration is designated as domestic or international.
The Australian Centre for International Commercial Arbitration (ACICA) has developed the 2021 ACICA Arbitration Rules, which represent the principal rules adopted for international commercial arbitration conducted in Australia and seated in Australia. These rules provide a comprehensive framework governing all aspects of arbitral procedure, from the constitution of the tribunal through to the form and effect of arbitral awards. The ACICA Rules incorporate contemporary best practice in arbitration administration, including provisions for emergency arbitrators, expedited procedures and flexible arrangements for the taking of evidence. Significantly, the ACICA Rules Committee was reconstituted at the end of 2024 and has commenced a comprehensive review of the 2021 Rules to ensure alignment with international developments and to incorporate lessons learned from post-COVID online hearing procedures. This review is expected to culminate in the publication of updated ACICA Rules in 2026.
The Resolution Institute, one of the largest dispute resolution organisations in Australasia, has developed its own Arbitration Rules 2023, which have been carefully designed to align with the UNCITRAL Arbitration Rules and to be consistent with the Australian Commercial Arbitration Acts and the International Arbitration Act 1974. These rules provide an alternative institutional framework for arbitration and are widely adopted in Australian construction disputes. Resolution Institute arbitration is administered by experienced dispute resolution professionals who have developed particular expertise in managing construction disputes, and the institute's rules reflect careful consideration of the specific requirements of construction and infrastructure disputes.
The Chartered Institute of Arbitrators (CIArb) has played a significant role in developing professional standards for arbitration practice. CIArb has promulgated a Protocol for Party-Appointed Expert Witnesses in International Arbitration, which provides detailed guidance on the appointment, conduct and management of party-appointed expert evidence in arbitration proceedings. This protocol addresses critical issues including the identification of issues to be dealt with by expert evidence, the qualifications and independence of experts, the content of expert reports, the conduct of experts' meetings and the manner in which expert testimony should be presented. CIArb is currently undertaking a major project titled "Maximising the Effectiveness of Party-Appointed Expert Witness Evidence in ADR," a global initiative that is gathering data and insights from all major regions including the Asia-Pacific region, and which will culminate in the publication of guidance addressing how expert evidence can be presented most effectively in alternative dispute resolution proceedings.
Arbitration offers significant advantages for construction and infrastructure disputes. Parties can select arbitrators with relevant expertise in construction, engineering and commercial matters, enabling them to choose decision-makers with specialist knowledge. The procedural rules can be tailored to suit the nature and complexity of the dispute, the hearing can be conducted with minimal formality, and the tribunal can control the timetable to ensure efficient disposition of the dispute. Arbitral proceedings are generally conducted with greater confidentiality than litigation, an important consideration for many parties to construction disputes. The IBA Rules on Taking of Evidence in International Arbitration, whilst not mandatory, are widely adopted and provide a practical framework that tribunals have found effective in managing complex evidence, including expert evidence. Many major construction disputes in Australia are resolved through arbitration, and the availability of institutional frameworks provided by ACICA and the Resolution Institute provides reliable and efficient administration of arbitral proceedings.
Security of Payment
Security of payment legislation represents one of Australia's most significant contributions to dispute resolution innovation. Commencing with the Building and Construction Industry Security of Payment Act 1999 in New South Wales, this legislative framework has been progressively adopted throughout all Australian states and territories, creating rapid adjudication mechanisms designed to address payment disputes in construction contracts without the need for full litigation or arbitration. These mechanisms have proven remarkably effective, with data indicating that over eighty percent of disputes resolved through adjudication achieve final resolution and are not pursued further through litigation, a striking testament to the effectiveness of this dispute resolution tool.
New South Wales pioneered the security of payment framework through the Building and Construction Industry Security of Payment Act 1999, which remains the most extensively litigated and developed security of payment regime in Australia. The NSW Act operates on the East Coast model, requiring that a claimant dissatisfied with a payment claim response initiate adjudication by making an adjudication application. The Act creates a straightforward procedural framework in which a claimant submits a payment claim, the respondent provides a payment schedule, and if the respondent fails to provide a payment schedule or if the claimant disputes the payment schedule, the claimant may apply for adjudication. An adjudicator must determine a payment claim within ten business days of the adjudication application, with a possible extension of an additional five business days by agreement. The NSW regime has been refined through extensive case law, and the NSW courts have developed clear principles governing the interpretation of the Act and the powers and procedures applicable to adjudicators.
Victoria adopted similar legislation through the Building and Construction Industry Security of Payment Act 2002, which operates on the same East Coast model. The Victorian Building Authority functions as regulator and authorised nominating authority. Victoria's regime has been subject to periodic amendment and refinement, most recently through amendments reflecting contemporary concerns about payment practices in the construction industry. The Victorian Act has generated significant case law addressing procedural issues and the powers of adjudicators, and the Victorian courts have established important principles governing the interpretation of security of payment provisions.
Queensland introduced its Building Industry Fairness (Security of Payment) Act 2024, replacing the earlier Building and Construction Industry Fairness (Security of Payment) Act 2017, which itself had replaced the Building and Construction Industry Payments Act 2004. This succession of Acts reflects Queensland's ongoing commitment to modernising its security of payment regime in response to developments in industry practice and perceived deficiencies in earlier legislation. The 2024 Act operates on the East Coast model, with the Queensland Building and Construction Commission (QBCC) functioning as both regulator and authorised nominating authority. Queensland has the highest volume of security of payment adjudications of any Australian jurisdiction, and the QBCC has developed extensive administrative guidance addressing the procedural requirements of the Act.
Western Australia's Building and Construction Industry (Security of Payment) Act 2021 represents a significant legislative modernisation. Notably, Western Australia previously operated under a different model—the West Coast model—in which a respondent to a payment claim could initiate adjudication if dissatisfied with a claimant's payment claim. However, the 2021 Act aligned Western Australia with the predominant East Coast model by requiring that only claimants can initiate adjudication. This change reflects Australia-wide movement toward harmonising security of payment frameworks and was implemented following detailed consultation. The 2021 Act replaced the Construction Contracts Act 2004, which had governed security of payment in Western Australia for nearly two decades. Building and Energy Western Australia functions as regulator and authorised nominating authority. The transition from the West Coast model to the East Coast model in the 2021 Act has required careful management and has generated significant practitioner discussion about the transition mechanisms and the treatment of adjudication rights under contracts entered into before and after the Act's commencement.
South Australia's Building and Construction Industry Security of Payment Act 2009 operates on the East Coast model, providing a framework substantially aligned with the earlier New South Wales legislation. The South Australian regime has been subject to careful interpretation by the South Australian courts, which have established important principles governing the jurisdiction of adjudicators and the enforcement of adjudication determinations.
Tasmania's Building and Construction Industry Security of Payment Act 2009 similarly adopts the East Coast model and operates on principles aligned with other Australian jurisdictions. Tasmania, together with the Australian Capital Territory, adopted security of payment legislation at a later stage than New South Wales and Victoria, but the legislation reflects careful consideration of earlier models and incorporates refinements based on the experience of earlier-adopting jurisdictions.
The Australian Capital Territory's Building and Construction Industry (Security of Payment) Act 2009 operates on the East Coast model and provides a framework adapted to the circumstances of the Australian Capital Territory. The ACT, despite its smaller construction industry, has developed specialised expertise in security of payment matters and has produced careful case law addressing procedural and jurisdictional issues.
The Northern Territory's Construction Contracts (Security of Payments) Act 2004 is notable as one of the remaining Australian jurisdictions to retain the West Coast model of security of payment. Under the NT Act, a respondent to a payment claim can initiate adjudication if dissatisfied with the claimant's claim. This model continues to operate in the Northern Territory and reflects the historical development of the jurisdiction's legislative framework, although movement toward East Coast harmonisation appears likely in the future as part of broader harmonisation efforts across Australian states and territories.
Significant harmonisation efforts have been undertaken across Australian jurisdictions to promote consistency in security of payment frameworks. The Murray Review of the Queensland Building Industry Fairness (Security of Payment) Act 2017 examined the effectiveness of security of payment legislation and made recommendations for possible harmonisation across Australian states. These efforts, whilst not yet resulting in complete uniformity, have promoted awareness of the different approaches and have highlighted areas in which greater consistency would promote more efficient dispute resolution and reduce compliance costs for parties operating across multiple jurisdictions.
Expert Determination
Expert determination has become an increasingly common mechanism for resolving specific disputes in Australian construction contracts. The Resolution Institute Expert Determination Rules 2024, which became effective on 15 October 2024, provide a contemporary institutional framework for expert determination proceedings. These rules reflect careful consideration of international best practice and the specific requirements of determination proceedings, which differ significantly from arbitration and litigation in that the expert's role is to resolve a specific issue by applying their expertise rather than to adjudicate disputes between parties in accordance with law.
Expert determination is particularly common in Australian construction contracts governed by the Australian Standard AS 4000-1997 General Conditions of Contract and its predecessor versions, as well as AS 4902-2000 General Conditions of Contract for Design and Construct. These standards incorporate expert determination provisions requiring that certain categories of disputes—most commonly involving quantum and technical matters—be referred to expert determination before the parties may proceed to arbitration or litigation. The contractual provisions typically specify the procedure for expert appointment, the expert's powers and the form and effect of the expert's determination.
Expert determination differs fundamentally from arbitration in that the expert is not deciding a dispute between parties but is applying specialist knowledge to resolve a factual or technical issue. Unlike an arbitrator, an expert is not bound to apply the law, is not required to provide a reasoned award, and may draw upon their own expertise and knowledge in a manner that an arbitrator cannot. The expert's determination is generally binding on the parties, and the grounds for challenging an expert determination are strictly limited, generally being restricted to cases in which the expert has acted outside their jurisdiction, has breached a requirement of natural justice, or has manifestly failed to apply the correct test. This limited scope for challenge reflects recognition that the purpose of expert determination is to achieve efficient resolution through the application of expert knowledge, rather than the full procedural apparatus of arbitration.
Expert determination has proven particularly effective for resolving disputes concerning the quantum of claims, technical defects in construction, the cost of rectification works and the application of technical standards or specifications. The ACICA also offers administered expert determination proceedings under its institutional framework, providing parties with professional administration and procedural guidance. The availability of expert determination as a contractual dispute resolution mechanism has contributed significantly to the effectiveness of Australian construction contracts and has enabled many disputes to be resolved efficiently without the need for full arbitration or litigation.
Commercial Mediation
Mediation has become an increasingly important mechanism for resolving construction and infrastructure disputes in Australia, operating as both a contractually agreed mechanism and a court-ordered procedure. The Resolution Institute provides mediation services under its Mediation Rules, which establish a framework for the conduct of mediation proceedings and specify the obligations of the mediator and the parties. ACICA similarly offers mediation services, and many private mediators operate independently under their own procedural rules or pursuant to the requirements specified by the instructing parties.
The Federal Court of Australia and the state supreme courts increasingly order parties to mediation before litigation proceeds to trial. These court-ordered mediations are frequently effective in achieving settlement and reducing the time and expense involved in litigation. The Victorian Civil and Administrative Tribunal (VCAT) and the Queensland Civil and Administrative Tribunal (QCAT) have integrated mediation into their dispute resolution procedures, with the tribunals offering mediation services and encouraging parties to mediate before proceeding to formal hearing. The NSW Civil and Administrative Tribunal (NCAT) similarly incorporates mediation into its procedures, and specialist tribunals across Australia have recognised that mediation frequently achieves outcomes superior to formal adjudication.
A significant development across Australian jurisdictions has been the establishment of pre-litigation mediation requirements. Many courts now require parties to make a genuine attempt at mediation before litigation can proceed, reflecting judicial recognition that mediation frequently achieves outcomes that satisfy the legitimate interests of all parties more effectively than contested litigation. These pre-litigation requirements have reduced the number of disputes requiring formal adjudication and have contributed to more effective dispute resolution in the construction industry.
Conciliation represents a distinct procedure in some Australian contexts, particularly in statutory contexts where conciliation is prescribed by legislation as a prerequisite to proceeding to adjudication or dispute resolution. Conciliation typically involves a neutral third party, the conciliator, who assists the parties in achieving agreement but who does not impose a decision if agreement is not reached. In some Australian tribunals and before some regulatory bodies, conciliation is distinguished from mediation by the conciliator's greater involvement in proposing settlement terms and actively assisting parties to reach agreement. This approach has proven effective in achieving resolution of disputes that might otherwise require formal determination.
Specialised mediation procedures have been developed for particular categories of disputes. Farm debt mediation, governed by legislation in a number of states, provides mediation services to farmers in financial difficulty. Franchise mediation operates under the Franchising Code of Conduct and provides a procedure for resolving disputes between franchisors and franchisees. These specialised mediation frameworks reflect recognition that mediation can be adapted to address the particular dynamics of different categories of disputes and that specialised mediation services can be more effective than general dispute resolution mechanisms.
Dispute Boards
Dispute boards have become an increasingly important dispute resolution mechanism on major infrastructure projects across Australia. These boards, which are typically constituted at the commencement of a major project and remain standing throughout the project's duration, provide a rapid mechanism for addressing disputes without the need for full arbitration or litigation. The Fédération Internationale des Ingénieurs-Conseils (FIDIC) contractual suite, which is widely used for international infrastructure projects and is increasingly adopted in major Australian projects, incorporates dispute board provisions that provide a structured framework for dispute board operation and decision-making.
The standard FIDIC model provides for a three-member dispute board, typically comprising two representatives nominated by the parties (one by the contractor and one by the employer) and a chairman selected by agreement of the party-appointed members. Some projects utilise single-member dispute boards, particularly where the disputed issues are not anticipated to be of high complexity. Dispute boards operate on a continuing basis throughout the project, conducting regular site visits and maintaining familiarity with the project's progress, anticipated disputes and the parties' respective positions on disputed issues. This ongoing engagement enables dispute boards to resolve disputes rapidly and with minimal procedural formality, by reference to their direct knowledge of the project and the issues giving rise to the dispute.
The Resolution Institute has developed Dispute Board Rules that provide an institutional framework for the constitution and operation of dispute boards, including procedures for the appointment of board members, the submission of disputes and the timetable for board determination. These rules have been adopted on a number of Australian infrastructure projects and provide a professionally administered framework consistent with international best practice. The advantages of dispute boards are substantial, particularly on major infrastructure projects. The standing nature of dispute boards means that they can address disputes rapidly without the need to constitute an arbitral tribunal or to commence litigation. The ongoing engagement of board members with the project enables rapid understanding of disputed issues and reduces the time required for board determination. The availability of dispute boards has contributed significantly to the efficient resolution of disputes on major Australian infrastructure projects and has promoted the completion of projects on schedule and within budget.
Contemporary Issues
Australian dispute resolution frameworks continue to evolve in response to developments in industry practice, legislative reform and international developments. A number of significant recent developments reflect the commitment of Australian legislators and dispute resolution practitioners to maintaining contemporary and effective frameworks.
Queensland's Building Industry Fairness (Security of Payment) Act 2024 represents a comprehensive modernisation of Queensland's security of payment regime. The 2024 Act incorporates learnings from the earlier 2017 Act and reflects contemporary understanding of best practice in security of payment frameworks. The legislation represents Queensland's ongoing commitment to ensuring that the state's security of payment regime remains effective and responsive to industry needs.
Western Australia's transition from the West Coast model to the East Coast model through the Building and Construction Industry (Security of Payment) Act 2021 represents a significant development promoting harmonisation of security of payment frameworks across Australia. This transition, whilst requiring careful management to address issues arising from the change in adjudication rights, has positioned Western Australia to align with the predominant model across most Australian jurisdictions.
The ACICA Rules Committee, reconstituted at the end of 2024, has commenced a comprehensive review of the 2021 Rules to ensure alignment with international best practice and to incorporate lessons learned from recent experience, particularly developments in online hearing procedures. An updated version of the ACICA Rules is expected to be published in 2026 and will reflect contemporary developments in international arbitration practice.
The Resolution Institute's Expert Determination Rules 2024, which became effective on 15 October 2024, represent a modernisation of the institutional framework for expert determination in Australia. These rules reflect careful consideration of international best practice and the specific requirements of expert determination proceedings, and they provide parties with contemporary guidance on the conduct of expert determination proceedings.
Technology has become increasingly important in Australian dispute resolution. Online hearing procedures, which were initially adopted as a pandemic response, have proven effective and have been retained as an option in many dispute resolution proceedings. Video conferencing and virtual hearing facilities have enabled parties and decision-makers to participate in dispute resolution proceedings with reduced travel and accommodation costs. These technological developments are likely to continue to reshape dispute resolution practice, and dispute resolution providers including ACICA and the Resolution Institute continue to adapt their procedures to accommodate technological change.
Our Practice
Expert Services International can provide services across all Australian dispute resolution mechanisms and jurisdictions. Led by Neil Kirkpatrick, a quantity surveyor and chartered arbitrator with decades of experience in construction and infrastructure disputes, the practice provides arbitration, adjudication, mediation, expert determination and dispute board services across all Australian states and territories.
Whether the dispute is being resolved through international arbitration, domestic arbitration, security of payment adjudication, mediation, expert determination or dispute board proceedings, our team understands the specific requirements applicable to each forum and each jurisdiction. We serve as arbitrators, adjudicators, mediators, expert determiners and dispute board members, bringing expertise in construction and infrastructure matters and precise knowledge of Australian procedural frameworks to every engagement.
Our Expertise
Expert Services International can provide dispute resolution services to parties involved in construction and infrastructure disputes across all Australian states and territories. Our services include acting as arbitrator, expert determiner, mediator, adjudicator and dispute board member. We also provide expert witness reports and testimony addressing quantum, delay, disruption, construction defects, contractual interpretation, variations, liquidated damages and claims for set-off.
We prepare claims submissions, expert reports and advocacy for use in arbitration, expert determination, mediation, adjudication and dispute board proceedings. We can assist parties with the preparation and presentation of claims and defences across all forms of dispute resolution.
Service Scope
Acting as arbitrator in domestic and international arbitration proceedings. We manage all aspects of arbitral procedure, conduct efficient hearings and deliver reasoned awards addressing the issues in dispute in accordance with applicable law and the parties' contractual framework.
Acting as expert determiner under contractual expert determination clauses and institutional rules. Expert determination provides a binding resolution of technical and valuation disputes by a suitably qualified professional, typically within a shorter timeframe than arbitration or litigation.
Preparation of expert reports addressing quantum, delay, disruption, construction defects, contractual interpretation, variations, liquidated damages and claims for set-off. We provide expert testimony in arbitration, court proceedings, mediation, adjudication and expert determination proceedings.
Acting as mediator and providing mediation services to assist parties in reaching a negotiated resolution of disputes. We facilitate structured discussions, assist in identifying common ground and help parties achieve settlement without the need for formal adjudication.
Acting as adjudicator under security of payment legislation across all Australian states and territories. We conduct rapid determinations addressing payment disputes within the compressed timeframes prescribed by the applicable legislation.
Acting as dispute board member, chairperson or single neutral on major infrastructure projects. Dispute boards provide a standing mechanism for the rapid resolution of disputes during project execution, maintaining familiarity with the project throughout its duration.
