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Arbitration preferable to slow and expensive court processes
The court system in Queensland is too slow, expensive, and unpredictable, with people seeking justice often better off resolving a dispute through arbitration, writes Dan Creevey.
Dan Creevey
Taking matters to the courts in Queensland can involve a lot of time, cost, and uncertainty.
My firm had a recent experience in the Supreme Court, which took two years for the hearing, several expensive and wasteful interlocutory applications and then the decision took more than 12 months from the date of the hearing.
In contrast, the advantages of arbitration in Queensland were brought home to me in another matter, which involved an agricultural lease with obligations to leave the property in a certain condition. Our client, the lessee, maintained the tenant had breached the terms of the lease and caused considerable damage, including economic loss.
Fortunately, there was a commercial arbitration clause in the disputes provision contained in the lease, and the parties accepted that jurisdiction.
The arbitration process was vastly more efficient.
Following the service of a notice of dispute, a senior King’s counsel has been appointed by both parties and a hearing date already allocated before the end of the year.
The arbitrator has made directions about the provision of the evidence and will appoint an expert when the issues are refined. The arbitrator also indicated he would hand down his decision within 14 days of the hearing.
Arbitration is binding, faster, less expensive, and less formal. You can choose the right arbitrator for the job and the matter is confidential.
The old legal thinking was that arbitration clauses were not enforceable and should be avoided because you needed to get “good justice” through the court system.
That is wrong.
Arbitration has a long history around the world, right back to ancient times, and found its origins in the needs of merchants.
The legislative framework was adopted by the Australian states during the 1980s, with Queensland being the slowest to embrace the system.
The Commercial Arbitration Act, which sets out the legal requirements for an arbitration and their effect, was adopted in Queensland in 1990.
The underlying concept is that of an agreement by the parties to submit to arbitration disputes that have arisen between them in respect of a defined legal relationship.
The arbitration agreement must be in writing, and that requirement can be met by electronic communication. No special words are necessary; however, it must be clear that arbitration is the contemplated form of dispute resolution.
Arbitration is not an expert determination. It is important to have a binding arbitration clause in your contracts.
Dan Creevey is the principal of Creevey Horrell Lawyers.
