Vic: Private Adjudication
Private Adjudication is the term used to describe an expert determination that is not conducted under the Act. Adjudication under the Act is a statutory expert determination. All other expert determinations are Private Adjudications.
The Act recognises that the parties may wish for certain variation claims to be decided by Private Adjudication. However, please note that it is not possible to exclude variation claims from the ambit of the Act when:
- the contract price does not exceed $150,000;
- when the contract does not have its own method or resolving disputes; or
- the contract price does not exceed $5m. and the sum of all disputed variation claims does not exceed 10% of the contract price [s.10A].
Disputed variation claims outside this range can be made the subject of Private Adjudication. Many standard forms of contract have an expert determination clause or an arbitration clause. These are methods of resolving disputes. If the contract does not include its own expert determination clause, the parties can agree to use Adjudicate Today's expert determination clause. This is done by including in the contract:
'If a dispute arises between the parties in relation to this agreement then the Claimant will write to the other party setting out the background, the issue in dispute and the outcomes desired. The parties will use their best endeavours to resolve the dispute fairly and within a reasonable time. If the Claimant considers that a reasonable time has expired and the dispute has not been resolved, the Claimant can submit the dispute to Private Adjudication and ask Adjudicate Today Pty Ltd to nominate a person to conduct the Private Adjudication.'
The Private Adjudication will be conducted in accordance with Adjudicate Today's Rules for Private Adjudication (2007 Edition 1). These are published below.
Both parties will participate in the Private Adjudication in accordance with the Rules and will give effect to the decision of the Adjudicator. If the decision is that one must pay the other an amount of money, that amount must be paid within 7 days after the decision is served on the party liable to pay.
Even if a contract does not have a dispute resolution clause, parties to a dispute can agree to submit a particular dispute or disputes to Private Adjudication.
Rules for Private Adjudication (2007 Edition 1)
These are Adjudicate Today Pty Ltd's rules for the conduct of an expert determination ["a Private Adjudication"] to resolve disputes.
1. A party to a dispute ["the Claimant"] may request Adjudicate Today to nominate a person ["the Adjudicator"] to decide a dispute between the Claimant and the other party to the dispute ["the Respondent"].
2. The parties should agree to Private Adjudication in advance of approaching Adjudicate Today.*
* A template agreement may be downloaded to assist parties. Adjudicate Today staff are also available to help parties negotiate a suitable agreement for a fixed fee of $1,100.00.
3. The Claimant must serve a copy of the application and all attachments on the Respondent on the same day as or as soon as possible after the Claimant lodges the application form with Adjudicate Today.
4. Adjudicate Today will appoint a person to be the Adjudicator and will advise the parties of the name of the Adjudicator.
5. Within 14 days after receiving a copy of the application, the Respondent must lodge with Adjudicate Today any submissions the Respondent wishes to make in response to the application. At the same time, the Respondent must serve a copy of the response on the Claimant.
6. All documents from the parties to the Adjudicator must be sent through Adjudicate Today and a copy of any communication must immediately be given to the other party by the party creating the document.
7. Within 14 days after receiving a copy of the Respondent's submissions, the Claimant may make a submission to the Adjudicator on any matter raised in the Respondent's submissions. But the Claimant must not make new claims or do otherwise than reply to matters raised by the Respondent.
8. The Private Adjudication will be an informal process. With the consent of all the parties and the Adjudicator, additional or different Rules may be agreed for the conduct of this Private Adjudication.
9. The Adjudicator only undertakes to act honestly. The Adjudicator does not undertake to arrive at a decision according to law, as a court or arbitrator might, or to provide legal advice. The Adjudicator is not an arbitrator and the process is not arbitration. The Adjudicator does not have the powers of an arbitrator or the means which an arbitrator has to arrive at a decision according to law. The Adjudicator's decision may contain errors of fact or law, omissions or mistakes, and it may be different to the decision which a court or arbitrator might make.
10. The Adjudicator may:
- extend times allowed by these Rules;
- call a conference of the parties;
- make an inspection;
- call for further submissions on any issue.
11. The Adjudicator will give a written decision on the dispute within 28 days after appointment as Adjudicator. The decision will be the Adjudicator's opinion on the rights of the parties with respect to the issues in dispute. The decision may be that one party owes the other party an amount. The Adjudicator will give brief reasons for the decision but those reasons may not cover every issue raised. Even though the reasons may express an opinion as to the law, it must not be taken as legal advice and it may not, in fact, represent the law on the point.
12. The Adjudicator may correct any accidental slip or miscalculation in his or her decision.
13. The Adjudicator will not be liable for anything done or omitted to be done in the course of the Private Adjudication or in the belief that he or she is exercising the power of an Adjudicator under these Rules. Any agreement between the parties as to the binding effect, if any, to be given to the decision of the Adjudicator is entirely a matter for the parties. Neither will have any claim against the Adjudicator for any mistake which the Adjudicator may make in deciding the dispute.
14. The Adjudicator's fees will be at the same hourly rate as the Adjudicator would charge were the Private Adjudication a statutory adjudication. The Adjudicator has a lien on his or her decision until his or her fees are paid.
15. If for any reason the Adjudicator is unable or unwilling to complete the Private Adjudication, Adjudicate Today will appoint another Adjudicator who will take over where the previous Adjudicator finished.
16. If the Claimant notifies the Adjudicator that the Claimant does not want the Private Adjudication to proceed, the Claimant will be liable for 100% of the Adjudicator's fees.
17. Except as provided in the preceding clause, the Adjudicator can decide, as between the parties, which party should pay what proportion of the Adjudicator's fees. If one party has paid the Adjudicator the other party's share or any part of it, the amount will be a debt due from the second party to the first party.