Raskin v Mediterranean Olives Estate Ltd

The matter before the court involved Raskin as the plaintiff and Mediterranean Olives Estate Ltd as the defendant. The dispute centred on the enforceability of an expert determination clause within the contract between the parties. The case was heard in the Supreme Court of New South Wales. The central legal issue the court had to determine was whether the expert determination clause in the contract constituted a submission to arbitration and whether it was sufficiently certain to be enforceable. Additionally, the court had to decide whether to grant a stay of proceedings in light of the clause and the nature of the disputes.

The court examined the precedents of Shoalhaven City Council v Firedam Civil Engineering Pty Ltd and In re Dawdy and Hartcup to understand the distinction between an arbitration clause and an expert determination clause. It concluded that the clause in question was not a submission to arbitration but rather an expert determination clause, which does not require the consent of both parties to bind them to the expert's decision. The court also assessed the certainty of the clause, finding it to be uncertain as it did not specify the expert's role or provide procedural instructions, making it unenforceable. The court referred to WTE Co-Generation & Anor v RCR Energy Pty Ltd to support its reasoning.

In determining whether to grant a stay of proceedings, the court considered the multiplicity of proceedings and the need for expert knowledge in resolving the disputes. The court noted that the issues involved a mix of fact and law, requiring careful consideration by a judge rather than an expert. Following the principles in Zeke Services Pty Ltd v Traffıc Technologies Ltd and Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd, the court decided against staying the proceedings due to the complexity of the issues and the lack of procedural instructions for the expert. The court ultimately refused the application for a stay, allowing the litigation to proceed.

The court ordered that the application for a stay of proceedings be refused, and the litigation would continue as per the usual course. This decision underscores the importance of clarity and certainty in expert determination clauses and the need to carefully consider the nature of the disputes when deciding whether to stay proceedings in favour of expert determination.