Dispute Resolution
1. If there is a dispute between the Parties concerning whether the Litigation Funding Agreement has been validly terminated, a Party may give written notice to the other Party requiring such a dispute to be referred to a QC in accordance with the provisions of this Schedule C Part I (a Request for QC Determination). Such a request must be made within 10 Business Days of the termination. For the avoidance of doubt, in the case of a dispute as to the valid termination of this Agreement arising from the Case Abandonment, the determination to be made by the QC in accordance with the provisions of this Schedule C Part I shall include an opinion as to the reasonableness of the proposed Settlement, which shall be binding on the Parties.
2. The Request for QC Determination shall be served on the other Parties within 10 Business Days of receipt of the relevant Termination Notice and contain:
a. a concise summary of the nature and background of the Termination Dispute and the issues arising; and
b. copies of all documents which have an important and direct bearing on the issues arising.
3. A Party may withdraw its Termination Notice by written notice within five Business Days of receipt of a Request for QC Determination. In the event of such withdrawal the Termination Notice shall be disregarded, and this Agreement shall continue in full force and effect.
4. In the event that a written notice of withdrawal is not served pursuant to paragraph 3 above, the QC shall be selected by mutual agreement between the Parties within 10 Business Days following the Request for QC Determination. If the Parties cannot reach a mutual agreement, the QC shall be chosen at the request of a Party by the Chairman for the time being of the NSW Bar Association (the Appointing Authority) who shall be asked to choose a suitably qualified and experienced QC for the dispute in question.
5. Prior to engagement, the QC shall agree with the Parties, in writing, their terms of engagement, including fee rates. If the terms of engagement of the QC have not been settled within 10 Business Days of their identity having been determined (or such longer period as the Parties may agree) then, unless Augusta or the Claimant are unreasonably refusing agreement to those terms, that QC shall be deemed never to have become the appointed QC and a new QC shall be selected by the Chairman for the time being of the NSW Bar Association in accordance with the provisions of paragraph 4 above.
6. If the QC shall become unwilling or incapable of acting (whether by reason of death, retirement or through ill health or otherwise), the Parties shall appoint a new QC by agreement or, if the Parties have been unable to agree upon the identity of a new QC within 10 Business Days of a written request by one Party to the other to do so, a Party may apply for the appointment of a new QC by the Chairman for the time being of the NSW Bar Association in accordance with the provisions of paragraph 4 above.
7. No individual shall be appointed as QC under this Schedule 3 Part I in any Termination Dispute if that individual has any financial or personal interest or undisclosed affiliation in or with any Party to this Agreement or in Your Qualifying Case.
8. Unless the Parties agree otherwise, the QC shall determine their own procedure, and apart from procedural matters and as otherwise set out in this Agreement, the QC shall determine only whether this Agreement has been validly terminated in accordance with the relevant provisions.
9. The procedure of the QC shall:
a. give the Parties a reasonable opportunity to make written representations to them; and
b. require that each Party supply the other with a copy of any written representations at the same time as they are made to the QC.
10. For the avoidance of doubt, the QC shall not be entitled to determine the scope of their own jurisdiction.
11. All matters concerning the process and result of the QC Determination shall be kept confidential among the Parties and the QC.
12. The QC shall make their decision as soon as is reasonably practicable and in any event within 15 Business Days of their engagement or such other period of time which the Parties and the QC, each acting reasonably, may agree.
13. The decision of the QC pursuant to this Schedule 3 Part I shall:
a. be made in writing; and
b. unless otherwise agreed by the Parties, include reasons for each relevant decision.
c. Until the QC notifies the Parties of their decision, this Agreement shall continue in full force and effect and the Parties shall continue to observe and perform all their respective obligations under this Agreement. Augusta may waive the requirements of this paragraph 14 in the event that the Claimant is required to perform any obligations under this Agreement before the QC notifies the Parties of their decision.
14. If the QC confirms that this Agreement has been validly terminated, this Agreement shall be deemed to have been terminated as of the effective date of the relevant Termination Notice.
15. If the QC decides that this Agreement has not been validly terminated, this Agreement shall continue in full force and effect and the Termination Notice shall be deemed to be disregarded and of no effect.
16. If the QC fails to reach their decision within the period set out in paragraph 12, a Party may request the appointment of another QC. If the Parties have been unable to agree upon the identity of a new QC within five Business Days of a written request by one Party to the other Party to do so, a Party may apply for the appointment of a new QC in accordance with paragraph 4 above. On acceptance of appointment by the new QC, the appointment of the previous QC shall end. If, prior to the acceptance of the new QC, the previous QC reaches their decision, that decision shall be binding on the Parties and the instruction of the new QC shall be withdrawn.
17. The QC shall act as expert and not as arbitrator and their determination of any matter falling within their jurisdiction shall be final and binding on the Parties unless there is fraud or manifest error.
18. Each Party shall bear its own costs in relation to the reference to the QC. The QC’s fees and any costs properly incurred by them in arriving at their determination shall be borne by the Parties equally or in such other proportions as the QC shall direct.
19. The Parties shall co-operate with the QC and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement.
20. None of the Parties will call the QC as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to the Termination Dispute and the QC will not act voluntarily in any such capacity without the written agreement of all the Parties.
21. This Schedule 3 Part 1 shall survive any termination of this Agreement.
22. If there is a dispute between the Claimant and Law Firm or Counsel as to whether an offer is a Reasonable Offer for the purposes of Reasonable Offers (which for the avoidance of doubt includes a dispute as to the amount and/or timing of the offer), the Claimant must notify Augusta and the Law Firm in writing (such notice being a “Notice of Dispute”) within two Business Days of receipt of the Law Firm’s or Counsel’s advice regarding the Settlement offer, failing this, the Claimant agrees to instruct the Law Firm to accept a Reasonable Offer made by the Defendant or to put a Reasonable Offer to the Defendant, notwithstanding the Claimant’s views at the relevant time.
23. On receipt by Augusta of a Notice of Dispute, the matter will be referred as a matter of urgency to an independent QC (“Independent QC”) jointly instructed by Augusta and the Claimant and the Law Firm.
24. If the Parties fail to agree the identity of the Independent QC within five Business Days of receipt of the Notice of Dispute, the Independent QC shall be determined at the request of either Party by the Chairman for the time being of the NSW Bar Association who shall be asked to choose a suitably qualified and experienced QC to deal with the dispute in question.
25. The provisions of paragraphs 5, 6, 7, 9, 10, 11, 12, 13, 18, 19, 20 and 21 of Schedule 3 (Dispute Resolution) Part I (Termination) shall apply to the Independent QC’s procedure for determining a dispute in relation to Settlement.
26. If the Independent QC determines that the offer of Settlement in question is reasonable, it will constitute a Reasonable Offer, the provisions of Clause 7.6 above shall apply and the Claimant shall not be entitled to issue any further Notice of Dispute.
27. If the Independent QC agrees that the offer of Settlement by the Defendant is reasonable, but the period for accepting the offer has expired, the Claimant agrees to instruct the Law Firm to make a Settlement offer to the Defendant in the same amount if, in all the circumstances, the Law Firm is of the view that it remains reasonable to do so.
28. If the Independent QC determines that the offer of Settlement in question is not reasonable, Your Qualifying Case will continue.
29. The Parties shall request that Counsel apply the criteria set out in RG248.95 of the Regulatory Guide 248 issued by ASIC and recited in the Dispute Resolution Process under the heading “Settlement Decisions” when providing an opinion.
30. If there is a dispute between the Parties concerning the value of any Benefits a Party may give written notice to the other Party requiring such a dispute to be referred to a QC or an expert (Expert) in the appropriate field in accordance with the provisions of this Schedule 3 Part 3 (a Request for Expert Determination).
31. The Request for Expert Determination shall be served on the other Parties and contain:
a. a concise summary of the nature and background of the Benefit and the issues arising;
b. copies of all documents which have an important and direct bearing on the issues arising.
32. In the event that subsequent agreement is not reached, the Expert shall be selected by mutual agreement between the Parties within 10 Business Days following the Request for Expert Determination. If the parties cannot reach a mutual agreement, the Expert shall be chosen at the request of a Party by the appropriate professional body (for example NSW Bar Association).
33. Prior to engagement, the Expert shall agree with the Parties, in writing, their terms of engagement, including fee rates. If the terms of engagement of the Expert have not been settled within 10 Business Days of their identity having been determined (or such longer period as the Parties may agree) then, unless Augusta or the Claimant are unreasonably refusing Our agreement to those terms, that Expert shall be deemed never to have become the appointed Expert and a new Expert shall be selected in accordance with the provisions of paragraph 2 above.
34. If the Expert shall become unwilling or incapable of acting (whether by reason of death, retirement or through ill health or otherwise), the Parties shall appoint a new Expert by agreement or, if the Parties have been unable to agree upon the identity of a new Expert within 10 Business Days of a written request by one Party to the others to do so, a Party may apply for the appointment of a new Expert in accordance with the provisions of paragraph 2 above.
35. No individual shall be appointed as Expert under this Schedule 3 Part II in any dispute if that individual has any financial or personal interest or undisclosed affiliation in or with any Party to this Agreement or in Your Qualifying Case.
36. Unless the Parties agree otherwise, the Expert shall determine their own procedure, and apart from procedural matters and as otherwise set out in this Agreement, the Expert shall determine only the value of any Benefit.
37. The procedure of the Expert shall:
38. give the Parties a reasonable opportunity to make written representations to them; and
a. require that each Party supply the other with a copy of any written representations at the same time as they are made to the Expert.
b. For the avoidance of doubt, the Expert shall not be entitled to determine the scope of their own jurisdiction.
39. All matters concerning the process and result of a Request for Expert Determination shall be kept confidential among the Parties and the Expert.
40. The Expert shall make their decision as soon as is reasonably practicable and in any event within 15 Business Days of their engagement or such other period of time which the Parties and the Expert, each acting reasonably, may agree.
41. The decision of the Expert pursuant to this Schedule 3 Part II shall:
a. be made in writing; and
b. unless otherwise agreed by the Parties, include reasons for each relevant decision.
42. If the Expert fails to reach their decision within the period set out in paragraph 11, a Party may request the appointment of another Expert. If the Parties have been unable to agree upon the identity of a new Expert within five Business Days of a written request by one Party to the other Party to do so, a Party may apply for the appointment of a new Expert in accordance with paragraph 2 above. On acceptance of appointment by the new Expert, the appointment of the previous Expert shall end. If, prior to the acceptance of the new Expert, the previous Expert reaches their decision, that decision shall be binding on the Parties and the instruction of the new Expert shall be withdrawn.
43. The Expert shall act as expert and not as arbitrator and their determination of any matter falling within their jurisdiction shall be final and binding on the Parties unless there is fraud or manifest error.
44. Each Party shall bear its own costs in relation to the reference to the Expert. The Expert’s fees and any costs properly incurred by them in arriving at their determination shall be borne by the Parties equally or in such other proportions as the Expert shall direct.
45. The Parties shall co-operate with the Expert and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement.
46. None of the Parties will call the Expert as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to any dispute as to the financial value of a Benefit and the Expert will not act voluntarily in any such capacity without the written agreement of all the Parties.
47. This Schedule C Part 3 shall survive any termination of this Agreement.