McKerracher J
In this case the Buurabalayji Thalanyji Aboriginal Corporation (BTAC), the registered native title body corporate (RNTBC) for the Thalanyji native title holders, commenced proceedings against Onslow Salt and the State of Western Australia over disputes relating to salt mining in the determination area. In 1996, the native title claimants (now represented by BTAC) entered into a deed with Onslow Salt. Under the deed, the native title holders agreed to the grant of the Mining Lease and to the suspension of their native title rights and interests for the duration of the project in exchange for a range of benefits. In the course of the project, Onslow Salt entered into an agreement with Chevron for the extraction of fill material from the salt mining area. BTAC argued that this agreement was a sham and constituted a future act about which they were not notified. BTAC also argued that Onslow Salt failed to consult them about the safeguarding and monitoring of the environment, as required under the deed.
The Dispute Resolution Clause (DRC)
Onslow Salt contended that BTAC, by commencing proceedings, had failed to comply with the requirements of a DRC within the deed and sought a stay of the proceedings. The DRC stated that ‘if there is a dispute question or difference between the Parties with respect to any matter’ then the parties shall confer for 30 days, after which they will refer the dispute to an independent expert. It was not disputed that BTAC did not refer the dispute to an expert per the terms of the DRC, however BTAC argued that they were not required to because (a) the DRC was not applicable to this kind of dispute and (b) it would be impossible for an expert to resolve the issues raised in the dispute.
Decision
McKerracher J provided an overview of the law on dispute resolution clauses within contracts. With reference to Savcor Pty Ltd v New South Wales (2001) 52 NSWLR 5867, Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] QSC 135 (‘Zeke’) and Raskin v Mediterranean Olives Estates Ltd [2017] VSC 94, His Honour found that where parties to a commercial contract agree to a particular dispute resolution procedure, they must adhere to that procedure unless the party wishing to abandon it in favour of recourse to the courts can show good cause. Per Zeke, this would be satisfied if the dispute were not amenable to resolution by the mechanism chosen by the parties. His Honour held that the DRC did not contemplate extremely complex factual matters of the kinds raised in this case, having regard to the time constraints and very limited content of the procedural aspects of the clause. His Honour also noted the involvement of a third party (the State) in this case. Even if the proceedings were stayed in relation to the dispute against Onslow Salt, separate proceedings could proceed against the State.
Although the Court will refuse a stay of proceedings for failure to comply with a DRC only in exceptional circumstances, McKerracher J ultimately held that the DRC was not applicable to the dispute and declined to stay the proceedings.