Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217

Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217 - VSCA 2013 case summary — Zoe

[31]

the parties shall agree on an Independent Expert to determine the Dispute, either by appointing a person from the Accelerated Dispute Panel, appointing the Independent Reviewer to act as Independent Expert or by appointing some other person as agreed by the parties.

(b) (Fail to agree on Independent Expert): If the parties fail to agree on the Independent Expert within the time referred to in paragraph (a), then an Independent Expert will be nominated by the Minister (or the Minister's nominee) from the appropriate discipline on the Accelerated Dispute Panel.

(c) (Panel updates): The parties may review and update the Accelerated Dispute Panel at any time but not more than once in every Quarter after the Date of this Agreement.

(d) (Tripartite agreement): The Independent Expert must execute an agreement with the parties which is substantially in the form of the Independent Expert Agreement within 10 Business Days of the agreement on the Independent Expert referred to in paragraph (a) or on appointment pursuant paragraph (b).

(e) (Referral): If the Independent Expert so agreed or nominated:

(i) does not execute a tripartite agreement with the parties which is substantially in the form of the Independent Expert Agreement in accordance with paragraph (d), then the Dispute will be referred to arbitration pursuant to Clause 53; or

(ii) has executed an agreement in accordance with paragraph (d), then the Dispute is referred to that Independent Expert for determination.

(f) (Basis for determination): The Independent Expert will make the determination based upon:

(i) the submissions provided by the party that issued the Notice of Dispute, which were delivered with that Notice of Dispute;

(ii) submissions provided by the respondent to the Notice of Dispute which, unless the Independent Expert extends the time for delivery, must be delivered within 5 Business Days of the Independent Expert signing the tripartite agreement referred to in paragraph (d); and

(iii) any further information provided by the parties in accordance with this Clause 52.

(g) (Further information): If the Independent Expert decides that further information is required the Independent Expert may call for further submissions, documents or information from either or both parties.

(h) (Conference): After the Dispute has been referred to him or her, the Independent Expert may call and conduct a conference, or any number of conferences, as the Independent Expert sees fit, between the parties but will give the parties reasonable notice of the matters to be addressed at any such conference.

(i) (Representation): The parties may be legally represented at any such conference.

(j) (Privacy): All conferences will be held in private except to the extent that representatives of the Key Subcontractors will be permitted to attend on reasonable notice, where the Dispute impacts upon the Works or the Services (as the case may be).

(k) (Site visit): The Independent Expert may, if he or she considers it necessary, visit the Site, the Designated Commercial Areas or the Facility (as the case may be), and the parties will facilitate the Independent Expert's access to any of those areas.

(l) (Timing): The Independent Expert shall make his or her determination in relation to the Dispute:

(i) within 10 Business Days of the last of the steps set out in subparagraphs (a) to (k); or

(ii) within 30 Business Days of receipt of the respondent's submissions in accordance with paragraph (f)(ii),

whichever is the earliest. If the Independent Expert fails to make a determination within this time either party may refer the Dispute to arbitration in accordance with Clause 53.

(m) (Not arbitrator): The Independent Expert will act as an expert and not an arbitrator and may make a decision from his or her own knowledge and expertise.

(n) (Final and binding): To the extent permitted by Law, the determination of the Independent Expert will be final and binding on the parties, unless:

(i) the value of the determination is greater than $15 million; and

(ii) a party gives written notice to the other party within 15 Business Days of the determination referring the matter to arbitration under Clause 53.

(o) (Mistake): Where the Independent Expert's determination contains:

(i) a clerical mistake or an error arising from an accidental slip or omission;

(ii) a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or

(iii) a defect of form,

the Independent Expert may correct the determination by written notice to the parties.

(p) (Costs): The cost of the Independent Expert will be borne equally by each of the parties to the Dispute unless the determination is made against the party who issued the Notice of Dispute, in which case the Independent Expert may determine that that party will bear all or a greater proportion of the Independent Expert's costs in respect of that matter.

(q) (No liability): The Independent Expert will not be liable to the parties arising out of, or in any way in connection with the expert determination process, except in the case of fraud.

(r) (Change Compensation Principles): Any dispute in relation to a matter to which the Change Compensation Principles are said to apply in this Agreement may be referred by either party for resolution by an Independent Expert and in making a determination, the Independent Expert must be instructed to have regard to the Change Compensation Principles.

[40]

(a) (ACICA Rules): Arbitration pursuant to this Clause 53 will be conducted in accordance with the rules of ACICA (ACICA Rules) current at the time of the reference to arbitration and as otherwise set out in this Clause 53.

(b) (Seat): The seat of the arbitration will be Melbourne in Victoria.

(c) (Not court): Nothing in this Clause 53 or the ACICA Rules is intended to or shall modify or vary the rights of appeal contained in the Commercial Arbitration Act 1984 (Vic).

(d) (Conduct of arbitration): The parties agree that:

(i) they have entered into an arbitration agreement under this Clause 53 for the purposes of achieving a just, quick and cheap resolution of any Dispute or difference;

(ii) subject to Clause 53.2(f), any arbitration conducted pursuant to this Clause 53 will not mimic court proceedings of the seat of the arbitration and the practices of those courts will not regulate the conduct of the proceedings before the arbitrator; and

(iii) in conducting the arbitration, the arbitrator must take into account the matters set out in subparagraphs (i) and (ii).

(e) (Evidence in writing): All evidence in chief will be in writing unless otherwise ordered by the arbitrator.

(f) (Discovery): Discovery will be governed by the substantive and procedural rules and practices adopted by the Federal Court of Australia at the time of arbitration.

(g) (Oral hearing): The oral hearing will be conducted as follows:

(i) the oral hearing will take place in Melbourne, Victoria and all outstanding issues must be addressed at the oral hearing;

(ii) the date and duration of the oral hearing will be fixed by the arbitrator at the first preliminary conference. The arbitrator must have regard to the principles set out in paragraph (d) when determining the duration of the oral hearing;

(iii) oral evidence in chief at the hearing will be permitted only with the permission of the arbitrator for good cause;

(iv) the oral hearing will be conducted on a stop clock basis with the effect that the time available to the parties will be split equally between the parties so that each party will have the same time to conduct its case unless, in the opinion of the arbitrator, such a split would breach the rules of natural justice or is otherwise unfair to one of the parties;

(v) not less than 20 Business Days prior to the date fixed for the oral hearing, each party will give written notice of those witnesses (both factual and expert) of the other party that it wishes to attend the hearing for cross examination; and

(vi) in exceptional circumstances, the arbitrator may amend the date of hearing and extend the time for the oral hearing set under subparagraph (ii).

(h) (Experts): Unless otherwise ordered, each party may only rely upon one expert witness in respect of any recognised area of specialisation.

(i) (Costs): Any determinations made by the arbitrator under this Clause 53 shall include a determination relating to the costs of the reference and the award, including the fees and expenses of the arbitrator.

[131]

2. A presumption that the parties intended a written document to be the sole and exclusive repository of their agreement arises where the document is clear on its face, contains all terms appropriate to the transaction and is signed by the parties as the record of their agreement: LG Thorne & Co Pty Ltd v Thomas Borthwick & Sons (Australasia) Ltd. Extrinsic evidence is available to show that a document, ostensibly the entire and final contract, does not contain all the terms of the agreement but may for example be partly oral and partly written, or in more than one document: State Rail Authority of New South Wales v Health Outdoor Pty Ltd. However, where it is determined that the terms of the agreement are wholly contained in writing and are unambiguous or of a plain meaning, extrinsic evidence cannot be admitted to subtract from, add to, vary or contradict the language of the written agreement: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales.

3. In construing a written document, the object is to discover and give effect to the contractual obligations that reasonable persons in the position of the parties would objectively have intended the document's language to create. The emphasis is thus on giving effect to the apparent intention of the parties, and direct evidence of the parties' actual subjective intentions and expectations is inadmissible for purposes of construction: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales; Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd.

4. The language of a term is generally assigned its natural and ordinary meaning, read in the light of the contract as a whole but where it is ambiguous surrounding circumstances may be taken into account in assigning the presumed meaning. The surrounding circumstances include the matrix of mutually known facts, and the background, object, context and commercial purpose of the transaction, in the objective sense of what reasonable persons in the position of the parties would have had in mind: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales; Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd; Manufacturers' Mutual Insurance Ltd v Withers.

5. The consequences of alternative interpretations are not immaterial, and where the meaning of language in a contract is ambiguous, that interpretation will be preferred which avoids consequences which are in the circumstances capricious, unreasonable, unjust or not consonant with business efficacy: Australian Broadcasting Commission v Australasian Performing Right Association Ltd; Lewis Construction (Engineering) Pty Ltd v Southern Electric Authority of Queensland; Stillwell Trucks Pty Ltd v Nectar Brook Investments Pty Ltd.

6. Every passage of a document must be read as part of the whole instrument. This may justify departing from what had seemed the plain meaning of a clause considered in isolation: The Metropolitan Gas Co v Federated Gas Employees' Industrial Union.

7. Where a court can discern the intent of the parties from an examination of the document as a whole, words may be supplied, omitted or corrected in the instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters. In such cases rectification of the document is not required: Re United Pacific Transport Pty Ltd; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales.

8. 'If, by any reasonable construction, the intention of the parties can clearly be arrived at from the document itself, then the court will give effect to that intention even though this involves departing from or qualifying particular words used. So the court will be prepared to restrict, transpose, modify, supply or reject words or terms in the documents, provided the intention of the parties is plain in spite of the words': Chitty on Contracts; Tropwood AG of Zug v Jade Enterprises Ltd (The Tropwind).

At a glance

Court

Decision date

Before

Source

Judgment (271 paragraphs)

Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217 (20 August 2013)

Parties

Cases Cited (16)