Federal Court of Australia

INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 7) [2026] FCA 571

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application filed 1 July 2025 be dismissed.

2.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    These proceedings (concurrent hearings of the INPEX Proceeding WAD 162 of 2021 and the JKC Proceeding WAD 448 of 2017) relate to the degradation and failure of a coating known as I228 utilised on an LNG Project near Darwin in the Northern Territory. The facts are summarised in the numerous interlocutory judgments to date, and it is not necessary to repeat them. Although the convention merges some of the respective entities, for convenience I will refer to the parties in the general manner utilised in the other interlocutory judgments: that is, as INPEX, JKC and ANIP respectively.

2    INPEX is the operator of the Project. INPEX entered into a contract with JKC (EPC Contract) for JKC to undertake certain engineering, procurement, supply, construction and commissioning for the Project. The I228 was supplied by ANIP (noting corporate identity is in issue). In short, both INPEX and JKC have brought claims against ANIP relating to the I228 alleging it engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law.

3    I228 was described in a product disclosure statement as being a highly crosslinked, high build epoxy phenolic coating which combined properties of corrosion and chemical resistance when used in high temperature service. It was also said to be suitable for use on insulated and uninsulated steel, and in situations of continuous intimate contact with wet insulation.

The application to re-open

4    This is an application by ANIP to re-open its case for the purpose of tendering Extracts of two reports prepared by expert witnesses and filed in separate litigation in the Supreme Court of Western Australia, to which neither ANIP nor JKC are parties.

5    ANIP seeks to tender the Extracts against both INPEX and JKC. The date of the Extracts post-dates the close of evidence and the delivery of the substantive closing submissions in this proceeding. The Extracts were received by ANIP after judgment was reserved (insofar as liability is concerned). Quantum is the subject of a reference, with a further adoption hearing scheduled, but both liability and quantum are to be addressed ultimately in the same reasons.

6    The Extracts, identified by reference to an affidavit of Ms Emma Young of Clayton Utz, were prepared by Mr Peter Moore and Mr Bryan McCormick for the purpose of the proceedings in the Supreme Court brought by INPEX against a number of its insurers, and in which INPEX is represented by different solicitors (Insurance Proceedings).

7    Mr Moore and Mr McCormick were also called by INPEX in the present proceedings, as expert witnesses in relation to the degradation and failure of I228.

8    The Extracts do not concern I228. They concern the flexible elastomeric foam (FEF) insulation system used on the Project and selected for use by JKC. FEF was not the subject of expert evidence in the proceedings in this Court. Relevantly the FEF system involved the use of a mastic (sealant) and ‘Arma-Chek R’ covering system. On parts of the Project, the I228 which was applied to modules for the Project was covered by FEF insulation.

9    If the application to re-open is granted, ANIP submitted that the Extracts are admissible and the Court should accept all representations made in the Extracts and make findings accordingly. ANIP does not intend to call the authors. On its proposed course, there will be no opportunity for cross-examination or the assistance from the authors which is usually provided to the Court through the expert evidence process.

10    Both INPEX and JKC opposed the application, including for common reasons but with some differences.

11    I am dealing with matters before me on an interlocutory application. In these reasons it is necessary to address certain forensic decisions which were made by the parties; arguments as to the scope of the respective pleaded cases; and the nature of certain evidence that has already been tendered and relied upon (some of which is contested). Nothing in these reasons should be taken to constitute a pre-determination of matters that will ultimately be determined in the principal judgment. In particular, regardless of the outcome of this application, ANIP relies on a body of other evidence in support of its defences and cross-claims, and the parties made and relied on detailed submissions in relation to matters such as apportionment and contributory negligence. All such matters will be addressed fully in due course.

History relevant to the application

ANIP’s notice to produce and INPEX’s application for dispensation

12    The expert reports that incorporate the Extracts were filed in the Insurance Proceedings on 28 February 2025 as part of the pre-trial regime in that Court. The expert reports have not as yet been tendered or otherwise adduced as evidence in those proceedings.

13    On 11 April 2025 ANIP issued a Notice to produce to INPEX, seeking production of the expert reports and other documents, including witness statements, filed in the Insurance Proceedings. INPEX sought dispensation from compliance with the Notice.

14    The application for dispensation was dealt with on the papers, relevantly being a series of submissions filed up to and including 7 May 2025. The dates of 6 to 12 May 2025 had already been reserved for closing submissions on particular matters. On Friday, 9 May 2025, during the hearing, senior counsel for ANIP sought to call on the Notice and receive a decision on INPEX’s application. It was neither practicable nor possible to proceed in that manner, having regard to the many other matters being addressed during the May 2025 hearing.

15    On Monday, 12 May 2025, I informed the parties of the outcome of INPEX’s application, indicating that reasons would be published as soon as possible. I expressly observed that the conclusion that (some) documents were to be produced did not mean they were assumed to be admissible, and that admissibility was a separate issue that might have to be dealt with in the future, depending on whether ANIP in fact sought to rely upon any documents produced. This observation was made because ANIP had from time to time in its submissions conflated the issues of production, tender and admissibility, and had assumed any documents produced would thereby be admitted into evidence.

16    The reasons on the application to set aside the Notice were published on 16 May 2025: INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 5) [2025] FCA 503 (Inpex (No 5)). I made orders setting the Notice aside in part, but relevantly requiring compliance in relation to the expert reports.

17    The expert reports were provided to ANIP on 20 May 2025.

The different subject matter of the expert evidence – I228 and the introduction of FEF in the present proceedings

18    The Insurance Proceedings include a claim by INPEX relating to FEF. For convenience I extract the following summary from Inpex (No 5):

[14]     … The Insurance Proceedings include a claim about the use of flexible elastomeric foam (FEF) insulation, used to surround the I228 coating on selected areas. The apparent need and cost to remove FEF from parts of the plant to access the underlying I228 for remediation purposes was referred to in the transfer reasons at [72] and was said to be relevant to the damages assessment exercise. Since that time INPEX has refined and amended its claim in the Insurance Proceedings concerning the FEF system and the circumstances of FEF repair or replacement. In particular, I was informed that INPEX amended its pleading in August 2024 to allege that: (a) prior to RFSU (ready for start up), it caused some FEF to be replaced or repaired; and (b) since RFSU, it has limited, and intends to continue to limit, replacement or repair relating to the FEF System to circumstances where I228 (or I228HS) is repaired or replaced, and it is necessary to remove the FEF system for that purpose. ANIP was provided with access to the amended pleadings.

[15]    Further, I observe that ANIP’s pleaded cases in the proceedings in this Court were amended in January 2024, after the transfer reasons were published, to introduce what came to be referred to by the parties as the ‘cure defence’ and by pleading allegations based on JKC’s use of FEF. Self-evidently the transfer reasons were written on the basis of the pleaded cases and other information disclosed at the time.

19    The reference to the transfer reasons in this extract is a reference to ANIP’s unsuccessful application to have the INPEX Proceeding and the JKC Proceeding transferred to the Supreme Court: JKC Australia LNG Pty Ltd v AkzoNobel NV (No 5) [2023] FCA 1248 (JKC (No 5)). It is relevant to repeat that the use of the FEF insulation system was not a part of ANIP’s defence or cross-claim in this Court at the time of the transfer application.

20    FEF was not referred to by either INPEX or JKC in their statements of claim in the respective proceedings in this Court. However, ANIP was on notice of issues affecting the FEF used on the Project from at least 2 December 2020, when it obtained copies of the writ of summons filed by INPEX in the Insurance Proceedings.

21    On 23 October 2023 ANIP foreshadowed a proposed amended defence in the proceedings in this Court to incorporate points that relied on the use of FEF on the Project. Amendments were formally made in January 2024, five months before trial.

22    In summary, by the amendments ANIP contended that the FEF insulation system’s design was defective and not fit for purpose, and that JKC accordingly breached warranties and contractual obligations to INPEX under the EPC Contract.

ANIP’s insulation apportionment claim pleaded as defence in INPEX Proceeding

23    In January 2024 ANIP amended its defence in the INPEX Proceeding to formally introduce an insulation apportionment defence based on the use of FEF and mineral wool (MW) insulation systems, alleging JKC was a concurrent wrongdoer. The amendments were made in the context that ANIP gave its quantum expert, Mr Brown, an assumption that all the insulation would have to be removed in every location where the I228 was being replaced (independently of whether or not the I228 coating was the cause of the removal).

24    By this defence, ANIP seeks to reduce its alleged liability to INPEX for the loss arising from the manifestation of the inadequacies with I228 on the Project by alleging wrongdoing by JKC in its design and use of the FEF and MW insulation systems on the Project is a cause of the same loss and damage. It relies on various legislative provisions that provide for proportionate liability, including s 87CD of the Competition and Consumer Act 2010 (Cth).

25    The act or omission on the part of JKC, or relevant defect, in the design and use of the FEF insulation system that is pleaded and particularised by ANIP is relevantly limited to the mastic being prone to premature degradation and the Arma-Chek R covering system not being watertight.

26    INPEX’s response to this allegation is that JKC is not a concurrent wrongdoer because JKC’s design and use of the FEF insulation system did not cause the same damage or loss as was caused by INPEX’s use of I228. It contends they are separate and distinct events of economic harm. It contends that even if JKC were a wrongdoer with respect to the insulation because it breached warranties under the EPC Contract, that would not make it a ‘concurrent wrongdoer’ with respect to the loss and damage claimed by INPEX.

27    ANIP also relevantly introduced in its cross-claim against INPEX and JKC in the INPEX Proceeding a claim that JKC has an obligation of contribution to make good ‘the one loss’.

28    ANIP bears the onus on its insulation apportionment claim but did not lead evidence from any witness to support the proposition that FEF or MW insulation issues are a material cause of the I228 rectification works. It led no lay or expert evidence that the insulation issues require the removal and replacement of the FEF and MW insulation which INPEX has removed or is removing as part of the I228 rectification works.

ANIP’s insulation claims in JKC Proceeding

29    ANIP introduced the FEF insulation issue in the JKC Proceeding by way of its amended defence, also filed 29 January 2024. By that amendment, ANIP pleaded breaches of JKC’s fitness for purpose warranties and obligations under the EPC Contract (under the heading ‘contributory negligence’), relevantly asserting a breach of the EPC Contract by JKC by the design of an insulation system that used FEF or MW. ANIP pleads that any loss or damage suffered by JKC as a result of the conduct of ANIP was partly due to its own failure to take reasonable care and is to be reduced pursuant to s 137B of the Competition and Consumer Act.

30    Again, the impugned design and use of the FEF insulation system that is pleaded and particularised by ANIP is relevantly limited to the mastic being prone to premature degradation and the Arma-Chek R covering system not being watertight.

31    The scope of the pleadings against JKC is highly relevant, because, as noted, ANIP did not open on its insulation case and did not adduce lay or expert evidence directed at it. Therefore, the pleaded case was the manner by which JKC was informed of the case it was to meet. In its closing submissions ANIP sought to rely on additional matters said to be relevant to JKC’s breaches or defects by the design and use of FEF, relevantly making submissions alleging a defect by specifying a FEF that was chloride-containing; and alleging other particular acts or omissions relating to workmanship. I will return to the significance of this.

32    In summary, JKC’s response to ANIP’s defence (in addition to requiring that it be kept to its pleaded case) was, in effect, that, accepting there were issues with the mastic on the FEF system, and accepting (without conceding) that such issues may have meant that it breached its contractual warranties, such contractual breaches did not make it a concurrent wrongdoer. Nor, it asserts, can ANIP establish a contributory negligence claim merely on the basis that JKC may have breached warranties under the EPC Contract. It must still establish a failure to take reasonable care.

The role of Mr Moore and Mr McCormick in the present proceedings

33    Both Mr Moore and Mr McCormick were called as expert witnesses by INPEX in these proceedings in relation to the use and degradation of I228. They travelled from the United Kingdom. They provided written reports and participated in a six-day joint evidence session in which they were extensively cross-examined. Expert witnesses called by JKC (Mr Fred Salome) and ANIP (Professor Graeme George) also participated in this joint evidence session.

34    Mr Moore is an engineer with degrees in materials science and metallurgy, with significant experience in materials and coating failures investigations. Mr McCormick is a senior consultant scientist with a degree in chemistry, who has international expertise in polymer and coating failure investigations. Both work for the international scientific consultancy firm, Minton, Treharne and Davies Ltd. To some extent Mr Moore and Mr McCormick worked collaboratively, combining their material science and chemistry expertise, although they provided separate reports.

35    Importantly, Mr Moore and Mr McCormick were not called as experts in the proceedings in this Court on any issue relating to insulation (FEF or otherwise). Insulation was not relevantly discussed in the joint evidence session.

ANIP did not adduce expert evidence for its insulation case

36    It is necessary to say something about how the trial proceeded.

37    The initial reports of Mr Moore and Mr McCormick addressing the deterioration of I228 were filed and served by INPEX in May 2023. JKC filed and served an initial report of Mr Salome, a specialist corrosion technologist, on about 1 May 2023.

38    Orders were originally made on 1 May 2023 about the service of expert evidence by ANIP, but they were later varied. In October 2023 orders were made requiring ANIP to file and serve any witness statements of any lay witnesses that it intended to call as witnesses at trial by 27 October 2023. The same set of orders required ANIP to file and serve the report(s) of any expert witnesses providing evidence on issues other than quantum that it intended to call as a witness at trial by 24 November 2023. It follows that ANIP was aware of the deadline for the exchange of expert reports at about the time it foreshadowed its amendments to its defence by way of the insulation apportionment claim.

39    ANIP filed and served a report of Prof George, a specialist polymer scientist, on 24 November 2023, relating to I228.

40    The trial dates had been reserved well before the programming orders for the exchange of evidence were made, to assist in reserving the time of counsel and witnesses.

41    The trial commenced on 20 June 2024 and continued for some 47 sitting days over a period of months.

42    During INPEX’s opening it made the point that ANIP’s quantum expert (Mr Brown) had been instructed to assume that all the insulation needed to be replaced in every location where the I228 was being replaced, but that there was no evidence (lay or otherwise) adduced by ANIP that established the basis for that assumption.

43    It appears that ANIP sought to engage an expert on the insulation issue. A report was prepared by a Mr Lumley dated 12 July 2024. Correspondence in evidence between the respective solicitors from July 2024 indicated that although INPEX challenged the right of ANIP to rely on further expert evidence at that point in time, it agreed to the report being adduced on certain conditions, including confirmation that ANIP sought to rely only on Mr Lumley’s report in reply to certain witness statements of Mr Robert Turner and Mr Andrew Jarvis (who were called by INPEX and gave evidence about the extent of replacement of FEF), and did not intend to adduce further evidence from Mr Lumley, and that Mr Lumley was available for cross-examination on dates already set aside for the trial.

44    Although Mr Lumley was then called by ANIP to give evidence, ANIP withdrew any reliance on his report (INPEX (No 5) at [39]). Accordingly, no relevant expert evidence was adduced at trial by ANIP specifically directed at the matters it raised about FEF insulation (or MW insulation) in its defence and cross-claims.

45    Further, during the hearing (on 16 July 2024) senior counsel on behalf of ANIP informed the Court that ANIP no longer intended to call a number of lay witnesses who had provided witness statements that were exchanged pursuant to the programming orders, and that it intended to rely on the evidence of only two lay witnesses (Ms Seow Ching Iris Chwa and Mr David Alexander) and on Prof George’s expert evidence.

Completion of the liability trial and reference – timing

46    ANIP had presented all evidence on which it intended to rely by August 2024 – that is, after it had called Ms Chwa, Mr Alexander and Prof George. As explained in Inpex (No 5), save for three matters, the evidence in the trial (as against the quantum reference) otherwise closed in September 2024. For convenience and consistency, I extract the relevant paragraphs:

[3]    Save for three matters, the evidence in this proceeding concluded on 9 September 2024, when one of the expert witnesses, Mr Moore, gave further oral evidence. Oral closing submissions were heard between 19 and 29 August 2024, with written closing submissions filed by [26] October 2024.

[4]    The first of the three matters was a special hearing for the purpose of cross-examination of witnesses in relation to discovery which was conducted on 30 October 2024, and that evidence has been treated as evidence in the trial.

[5]    The second matter was a hearing conducted on 12, 13 and 14 November 2024 to take evidence of a witness (Mr Jarvis) whose evidence was relevant to the trial and also to an inquiry on quantum that was referred to a referee under s 37P(2) and s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28 of the Federal Court Rules 2011 (Cth). On those dates the Court sat with the referee and the evidence of Mr Jarvis was taken to be evidence in the trial and for the purpose of the reference.

[6]    The third matter is that the hearing dates of 6 May 2025 to 12 May 2025 (May hearing) were set aside long ago for submissions as to whether the referee’s reports on his inquiry, which were published on 28 February 2025, were to be adopted or rejected in part or in full, or to consider whether other orders might flow from receipt of the reports (adoption application).

[7]    In the end the time allocated for the May hearing to deal with the [referee’s] reports and quantum issues that might arise from them was eaten into by supervening events. For example, the time was used to hear submissions in relation to a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth) filed by ANIP. The parties also agreed that further closing submissions on identified topics might be made during that period. None of those steps involved or permitted the re-opening of the respective cases in the proceedings insofar as the tender of new evidence was concerned (absent consent to such tender).

[8]    So much was confirmed by the approach to attempts by the respective parties during the May hearing to rely on certain evidence not previously tendered. For example, ANIP sought to make additional submissions on a statutory limitation point it pursues against INPEX. That was a topic on which the parties had closed and made closing submissions and it was accepted during the hearing that ANIP was taken to be applying to re-open its case in that regard and was seeking to rely on new evidence and submissions. Accordingly, I heard counsel on that application and as suggested by INPEX, its determination is likely to be addressed in the context of the ultimate reasons.

[9]    Further, ANIP opposed the proposed tender by INPEX of new evidence for the purpose of the adoption application. This gave rise to some discussion about the basis upon which the Court should have regard to evidence in the reference and whether leave was required by INPEX to rely on the proposed additional documents. It seemed to be accepted by INPEX that leave would be required and the matter was argued on that basis. Further, it was confirmed that to the extent identified documents were in evidence in the reference and relied upon by the parties for the purpose of the adoption application, the Court could and should have regard to them but only for that purpose. That is, they would become evidence in the adoption application, which is interlocutory in nature.

47    Further to those reasons, I accept that the parties identified the tender of certain additional documents by referring to them in the oral and written closing submissions on liability (so until 26 October 2024) and by schedules exchanged during August and September 2024. However, the end result is that all evidence in the trial had concluded by November 2024.

48    I also note that although Mr Moore was re-called to give evidence, as referred to at [3] of Inpex (No 5), it was on a limited basis (on the final topic identified for the conclave, being rectification of I228) and only because the conclave evidence was not completed in the time set aside.

49    Another matter subsequent to the May 2025 hearing should be recorded. The reference on quantum continued in relation to a particular matter the subject of separate reasons, and a supplementary report was produced by the referee on 29 April 2026: see generally INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 6) [2025] FCA 680. A hearing to consider adoption of the referee’s supplementary report is scheduled for later this year.

Respective positions on this application

50    ANIP seeks to tender only the Extracts. The Extract from Mr Moore’s report comprises 88 pages. The extract from Mr McCormick’s report comprises 18 pages.

51    In its reply submission on this application, ANIP described those parts of Mr Moore’s report that comprise the Moore Extract as:

Cover, table of contents, ‘Engagement’, ‘Report Author’ and ‘Statement of Instructions’ (sections 1-3): EY-1 at p 6-11; ‘Key conclusions’ (section 7); ‘MTD’s Inspection of the FEF System’ (section 9) and ‘Observations of the FEF System on Site’ (section 10): EY-1 at p 13-42; ‘Records of Deficient Joints in the FEF System’ (section 15): EY-1 at p 43-44; ‘Responses to Instructed Questions’ (sections 16-20): EY-1 at p 45-88; and Supplementary Brief to MTD: EY-1 at p 90-92.

52    ANIP described those parts of Mr McCormick’s report that comprise the McCormick Extract as:

Cover, table of contents, ‘Engagement’, ‘Report Author’ and ‘Statement of Instructions’ (sections 1-3): EY-2 at p 94-98; ‘Fourier Transform Infra-Red Analysis (FTIR)’ (section 19), ‘Gas Chromatography – Mass Spectroscopy (GC/MS)’ (section 20), ‘Pyrolysis GC/MS (PyGC)’ (section 21), and ‘Water Analysis’ (section 22): EY-2 at p 99-111.

53    What is immediately apparent, even from those brief descriptions, and taking into account the page lengths, is that the evidence is substantive and relates to highly technical scientific areas of expertise.

54    In summary, ANIP submitted that:

(a)    leave was not required to tender the Extracts because it had not formally closed its case on or before 12 May 2025 when the need for INPEX to comply with the limited Notice was confirmed;

(b)    the Extracts are admissible because they are subject to an exception to the hearsay rule under s 64(3) of the Evidence Act 1995 (Cth); because the opinion rule (s 76) does not apply to that part of the fresh material as constitutes statements of opinion, because Mr Moore and Mr McCormick were each qualified to express such opinions so that s 79 applies; and because the facts that INPEX’s lawyers in the Insurance Proceedings instructed Mr Moore to assume were correct may be used as admissions against it;

(c)    if ANIP requires leave to re-open in order to tender the Extracts, then such leave should be granted;

(d)    the Extracts are fresh evidence, received by ANIP on 20 May 2025;

(e)    ANIP’s conduct or strategic decisions in running its case are not relevant to the grant of leave because it could not have tendered the Extracts earlier;

(f)    the Extracts meet a materiality threshold in relation to three matters, being: first, whether the FEF system was fit for purpose; second, the technical reasons why the FEF system was not fit for purpose; and third, the consequences of the failure of the mastic;

(g)    underlying much of what is said on these ‘materiality’ matters is ANIP’s claim that the entirety of the FEF, or at least a significant proportion of it, will be removed and replaced because it is defective, and it calls in aid the Extracts to establish this; and

(h)    the Extracts establish certain facts (including ‘new facts’) that are said to be relevant to ANIP’s defences and cross-claims (the purported facts occupy four pages of ANIP’s written submissions).

55    INPEX submitted that:

(a)    ANIP requires leave to re-open, having closed its evidence on all issues, save for in the quantum reference, on 14 August 2024 and referring to the matters I have extracted at [46] above;

(b)    the well-recognised principles that apply on an application to re-open as summarised (for example) in Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 establish that the Court’s power to re-open is discretionary and should be considered exceptional;

(c)    the Extracts are not ‘fresh’ evidence as that term is properly to be understood, as it is not evidence of a fact that occurred after trial but expert evidence of the nature that ANIP could have sought at any time;

(d)    ANIP did not open on its insulation apportionment case and did not purport to file expert evidence until the trial was underway (the withdrawn Lumley report), matters that are relevant to the manner in which INPEX ran its case;

(e)    the fact that ANIP did not have expert evidence in support of its defence falls at its own feet, and it is bound by the conduct of its counsel and the deliberate decisions made as to the running of its case, including its decision not to file any expert evidence before the start of the trial;

(f)    ANIP has not established that if tendered and admitted, the Extracts are materially probative as to the matters raised by ANIP, having proper regard to the questions being addressed by Mr Moore in his Extract and having regard to the fact that some of those matters are not seriously in dispute;

(g)    however, INPEX will be prejudiced if the Extracts are tendered for the purpose identified, as it made decisions as to the conduct of the trial, including as to whether evidence had been adduced that required rebuttal, and its many decisions as to how it ran its case cannot now be disentangled;

(h)    ANIP seeks to tender the Extracts and have them admitted as an exception to the hearsay rule in circumstances where ANIP has not proposed that Mr Moore and Mr McCormick be recalled and to do so now ‘would be absurd’ (and referring to JKC’s submissions as to the inadmissibility of the Extracts); and

(i)    insofar as ANIP seeks to rely on admissions of fact in the instructions given to Mr Moore, it does not sufficiently identify any relevant alleged admissions.

56    JKC submitted that:

(a)    ANIP requires leave to re-open its case;

(b)    ANIP should be refused leave to re-open its insulation case against JKC in circumstances where ANIP did not adduce expert evidence at trial in support of its insulation case and it would be unfairly prejudicial to JKC to allow ANIP to now try to bolster its case by tendering the Extracts;

(c)    insofar as the question of admissibility is relevant to the leave application, the Extracts are inadmissible as they are hearsay statements to which no exception to the hearsay rule in Pt 3.2 of the Evidence Act applies;

(d)    even if an exception to the hearsay rule is available, the Extracts should not be admitted into evidence as against JKC pursuant to s 135 of the Evidence Act as their use would be unfairly prejudicial to JKC, or alternatively the Court should place a limitation under s 136 prohibiting the use of the Extracts in support of ANIP’s contributory negligence defence (in the JKC Proceeding) and cross-claim against JKC (in the INPEX Proceeding) on the basis that there is a danger that such use of the Extracts might be unfairly prejudicial to JKC; and

(e)    extensive further submissions within ANIP’s re-opening submissions that relate to its insulation case should be disregarded as going beyond the bounds of its pleaded case.

Issues

57    The themes raised by the different positions on the application at times overlapped. It has been neither possible nor sensible in the circumstances to compartmentalise and compare everything that was raised.

58    I have addressed the submissions in the following manner:

(a)    determining whether in my view ANIP requires leave to re-open its case to tender the Extracts;

(b)    considering the principles as to whether leave should be granted;

(c)    extracting and applying from those principles the matters relevant to the grant of leave in this case;

(d)    in that context, and having regard to issues of prejudice and materiality of the Extracts, considering the likelihood that on any tender they would be admitted into evidence against INPEX and JKC; and

(e)    similarly, considering whether if tendered any exclusion or limitation might be imposed under s 135 or s 136 of the Evidence Act.

Leave to re-open

59    I consider that ANIP requires leave to re-open its case. In saying this, I acknowledge that the May 2025 hearing, initially proposed as the reference adoption hearing, became an opportunity for submissions about an unexpected number of issues, and on one view this in part obscured the line for the closing of cases that may have otherwise been unquestionably clear. However, for the reasons expressed at [46]-[47] above, I remain of the view that ANIP had closed its evidence, final written submissions had been delivered, oral closing submissions had been made and, subject to the position on the reference, the Court had reserved its decision.

60    The Notice had been issued prior to the May hearing, and I disclosed on the morning of 12 May 2025 that I had considered INPEX’s application and decided that limited compliance was required. However, that process did not extend the life of the respective cases. Rather, it revealed that a prospect remained that there may be an application to re-open in the future if ANIP sought to rely on any documents produced. To find otherwise would permit a party to issue notices to produce in order, in effect, to keep a case open. Whilst the timing in this instance might appear unfortunate, it was neither contrived nor surprising. There is no suggestion that INPEX filed the reports in the Insurance Proceedings otherwise than in accordance with whatever programming orders may have been in place in those proceedings. The nature of ANIP’s approach to the Notice, with its conflation of issues of production and admissibility, meant it was unsurprising, if not inevitable, that INPEX would challenge the Notice, requiring the Court to determine the challenge, and that further applications might be required.

61    Alternatively, even if the hearing were taken to have remained on foot subject to any tender by ANIP of any documents produced in response to the Notice, the tender of the Extracts would inevitably have been challenged by INPEX and JKC. Their admissibility and potential exclusion would therefore have remained in issue regardless.

Principles

Applications where hearing still on foot

62    I will start with the principles that apply in the scenario of the alternative argument ([61] above).

63    In ASIC v Rich [2006] NSWSC 826, Austin J (at [18]) adopted a set of relevant considerations to be taken into account on the exercise of the court’s discretion to give leave for further evidence to be adduced after a party had closed its case, but in the context of an application made while the hearing itself was still on foot:

The defendants submitted a list of matters that they claimed to be relevant to the exercise of the court’s discretion to permit the plaintiff in a civil penalty proceeding to adduce further evidence after it has closed its case. I accept their list as a useful statement of relevant discretionary factors, applicable in such a case as the one before me. The list is as follows:

(a)    the nature of the proceeding;

(b)    whether the occasion for calling the further evidence ought reasonably to have been foreseen;

(c)    the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;

(d)    the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;

(e)    the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;

(f)    the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

(g)    the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;

(h)    the public interest in the timely conclusion of litigation;

(i)    what explanation is offered by the plaintiff for not having called the evidence in chief.

64    This Court has cited and applied ASIC v Rich on a number of occasions, including in relation to applications to re-open brought after a hearing has closed: BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389 at [10] (Foster J); Matson v Attorney-General [2020] FCA 1558 at [397] (Rangiah J); Frigger v Trenfield (No 7) [2020] FCA 1740 at [24] (Jackson J); MF Lady Pty Limited (Trustee) v Henry Morgan Ltd [2022] FCA 978 at [86] (Jackson J).

Applications after hearing but before judgment delivered

65    The Court has an inherent power to re-open a trial after judgment has been reserved and before it has been delivered in order to permit (relevantly) the admission of further evidence: Murray v Figge (1974) 4 ALR 612 at 613. The power is discretionary, but exceptional, and is to be exercised having regard to the public interest in maintaining the finality of litigation: Smith v New South Wales Bar Association (1992) 176 CLR 256 (Brennan, Dawson, Toohey and Gaudron JJ) at 265.

66    In Smith their Honours continued (at 266–67):

… If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation the primary consideration should not be that of embarrassment or prejudice to the other side.

… Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.

67    In Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 (Harper and Tate JJA, Beach AJA), the Victorian Court of Appeal said

[17]    There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. … Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

[18]    The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the re opened issues would be hard to define and as difficult to protect. The re-opened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the re-opening to polish parts of its case which were more or less within the scope of the re-opened proceeding but not clearly on one side or the other of the prescribed limits.

68    In Briggs, Murphy J collected the authorities, stating the following:

[22]    The overriding principle to be applied by the court in determining whether or not to grant leave to re-open a case for the admittance of further evidence, is that it must be in the interest of justice in the proceeding: see Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J); Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; 251 FCR 404 at [171] (Rares, Murphy and Davies JJ); The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust (ACN 083 629 225) v Lenard’s Pty Ltd (No.2) [2004] FCA 1310 at [22] and [25] (Mansfield J).

[23]    As the State submitted, the authorities show that there are four recognised categories of cases which, subject to the interests of the administration of justice, may justify the granting of leave to re-open, although the categories are not necessarily closed: Bradshaw at [24]; Spotlight at [25]-[26]. Broadly, the categories are:

(a)    fresh evidence. This brings into consideration whether the evidence is “new” in the sense that the applicant was unaware of it at the time of the original hearing, and also that it is evidence the applicant could not have obtained with reasonable diligence: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74] (North, Barker and Katzmann JJ);

(b)    inadvertent error. This may occur, for example, where counsel inadvertently overlooked an issue that arises on the pleadings or during a proceeding: Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 at 474–5 (Clarke JA);

(c)    mistaken apprehension of the facts. Similarly, this may occur where counsel has misapprehended the nature or significance of facts proven or agreed: Nweiser at 474–5; and

(d)    mistaken apprehension of the law.

[24]    In contrast, the discretion to re-open should not ordinarily be exercised where counsel has made a tactical or forensic decision not to lead evidence on an issue: Nweiser at 474-5, 478. Save for exceptional cases, parties are bound by the forensic decisions of their counsel: McCarthy v McIntyre [2000] FCA 1250 at [30] (Whitlam, Emmett and Hely JJ); Hamilton v The Queen (2021) 274 CLR 531 at 557 [54] (Kiefel CJ, Keane and Steward JJ).

[25]    Any prejudice to the party resisting the application that is likely to be suffered will be relevant: Nweiser at 478. As will the public interest in the timely conclusion of litigation: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18].

[26]    The probability that the additional evidence will affect the result is also relevant: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174 at [209] (Lindgren J). If success in re-opening is not likely to make any difference to the outcome of the trial, that would weigh against putting the parties and the court to the delay, trouble and expenditure of resources involved in reopening.

[27]    The requisite degree of probability has been stated in different ways. In Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493–94 Toohey J said that the evidence should only be admitted “when it is so material that the interests of justice require it” or where the evidence “would most probably affect the result”. In Daniel v Western Australia (2004) 138 FCR 254 at 269 RD Nicholson J said that it must be shown that the new evidence, if accepted, would “most certainly affect the result”. A party should not, however, be permitted to re-open a case merely because, in retrospect, it can be seen that better evidence about an issue in dispute might have changed the result. Were it otherwise, there would be no end to litigation: Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9; 190 FCR 437 at [9] (Keane CJ, Besanko and Perram JJ).

[28]    The concerns raised on an application to adduce further evidence after the close of the case involve consideration not only of the interests and prejudice of the parties, and the public interest in the finality of litigation, but also the availability of public resources. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [93] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) the High Court observed that “the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding.” That finds reflection in the “overarching purpose” stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible, including objectives of:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

69    See also GMS24 v Commonwealth [2025] FCAFC 170 at [100] (Horan and Bennett JJ), citing the principles set out in Briggs with approval.

70    Having regard to the four recognised (but not exhaustive) categories, the current application falls, if at all, within only the first (‘fresh’ evidence). It is not said that there was inadvertent error, mistaken apprehension of the facts or mistaken apprehension of the law.

‘Fresh’ evidence

71    As observed in Briggs, whether evidence is ‘fresh’ conventionally calls into consideration whether the evidence existed at the time of trial and could not then with reasonable diligence have been obtained. In this sense, there is a distinction between ‘further’ evidence, which in the Court’s discretion may be accepted on an appeal (under s 27 of the Federal Court of Australia Act 1976 (Cth)) and ‘fresh’ evidence: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74] (North, Barker and Katzmann JJ), referring to CDJ v VAJ (No 1) (1998) 197 CLR 172. However, even on an appeal, whether the evidence could have been called at trial is a relevant consideration (Kedem at [74]).

72    In Kedem, the appellant sought to rely on further evidence on appeal, including expert medical evidence. The Full Court declined to receive the evidence, pointing to a number of reasons relevant to the exercise of its discretion, including (at [85], emphasis added):

… there is no reason to suppose that the evidence was not available at the time of the original hearing or that, with reasonable diligence, it could not have been obtained in sufficient time to enable it to be tendered at that hearing. Some of the documents post-date the hearing but they contain information or opinion that would have been available to Mr Kedem well before the hearing.

73    In Century Legend Pty Ltd v Ripani [2022] FCAFC 191, the Full Court refused an application for leave to adduce further photographic evidence on appeal, in circumstances where a promotional render of an apartment was key to allegations of misleading or deceptive conduct. Senior counsel for the appellant accepted that prior to the commencement of the trial the apartment development was sufficiently progressed, such that photographic evidence could then have been obtained, and it would have been open to the appellant to engage an expert to prepare a montage of the apartment as constructed and one as depicted in the render by way of direct comparison. In refusing the application, McElwaine J (with whom Markovic and McEvoy JJ agreed) said:

[38]     … Section 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers a discretion to receive further evidence upon an appeal and is not couched in the language of fresh evidence. However, ordinarily in order to obtain a favourable exercise of the discretion it must be demonstrated that the applicant was unaware of the evidence at the time of the trial and could not with reasonable diligence have obtained it and, further, that had the evidence been adduced at the trial it is unlikely that other evidence would have been adduced by the opposing party in order to meet it. It should also be reasonably clear that the evidence, if received, would likely affect the result. For these propositions see generally: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [5]-[7], Gyles, Graham and Tracey JJ. I accept that these are not immutable tests that guide the exercise of the discretion in every case, but what is clear is that they are important considerations in this case.

[39]    The new evidence sought to be adduced could, with reasonable diligence, have been obtained by engaging an appropriately qualified expert to prepare accurate montages for the purposes of the trial. No satisfactory explanation for the failure by the appellant to do so was offered. The fact that the development was still in the construction stage at the time of the trial does not answer why, with reference to the then form of the architectural drawings approved for construction, comparative montages could not have been prepared. Further, the evidence sought to be introduced from [the photographer] is, on its face, contestable: he does not provide an analysis which locates the point at which each photograph was taken, nor as to the camera lens angle employed. Inevitably, had we resolved to receive this evidence, it would then have been necessary to adjourn the hearing of the appeal (perhaps for a lengthy period) in order to afford to the respondents a fair opportunity of examining the evidence …

74    Similarly, in Secretary, Department of Social Services v Vader (by his litigation guardian) [2024] FCAFC 37, the Court treated a submission on appeal as an application by the Secretary for leave to re-open and, if leave were granted, for leave to adduce expert evidence on the appeal as to the content of the United States social security laws. The application was rejected, Perry J (with whom Charlesworth and Jackson JJ agreed) citing the prospect that if adducing such evidence were permitted it would likely be contradicted, leading to delay in resolution of the appeal, but also stating (at [77]):

… The Secretary has been on notice since at least 2020 about [the respondent’s] claim to have accumulated a United States period of coverage. He has had ample opportunity to obtain expert evidence in an admissible form concerning the effect of United States law. Indeed, the Secretary obtained advice from the United States Social Security Administration, albeit that that advice was not in admissible form. In those circumstances, it could not be said that the Secretary was “unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence”.

75    Turning to the evidence sought to be tendered in this case, the Extracts, dated February 2025, were not made available to ANIP prior to the close of its case or the end of the hearing, and in that sense the documents in the hands of ANIP were ‘fresh’ evidence. However, the character of the evidence ANIP seeks to tender is such that they are not fresh evidence as that phrase should be understood in this context. They are extracts from expert reports which are based on pre-existing facts and circumstances which could have been examined by an expert called by ANIP in accordance with the trial programming regime prior to or even during the trial (as the experience with retaining Mr Lumley shows).

76    As with the medical opinions in Kedem, the Extracts contain information or opinions that would have been available to ANIP had it elected to adduce expert evidence on insulation at the time. As was the case in Century Legend, ANIP had the opportunity to obtain evidence of the nature contained in the Extracts by engaging an appropriately qualified expert to prepare a report on the FEF insulation system for the purposes of the trial. It can hardly contend otherwise, or that it did not consider doing so, when it took the step of retaining Mr Lumley for that purpose. As in Vader, ANIP had in fact taken the step of obtaining what purported to be expert evidence on insulation, albeit that it was withdrawn during cross-examination.

77    I accept that the particular expert evidence of Mr Moore or Mr McCormick would not have been available to ANIP for the purpose of the trial, as they were already retained by INPEX in these proceedings. However, ANIP could have retained its own experts and sought their opinions based on the pre-existing facts and circumstances. Those experts could have visited the Project site and undertaken their own investigations. There is no suggestion otherwise (Mr Lumley apparently did not seek to do so).

78    In this regard it is important to note that the content of the Moore Extract indicates that Mr Moore undertook on-site investigations and made observations about the FEF system the subject of his report in 2017, 2018 and 2022. He returned on-site in January 2025 but did not inspect the FEF system. Based on the McCormick Extract, Mr McCormick conducted tests in 2018, 2021 and 2022. Counsel for INPEX submitted that neither he nor his instructors are aware of any passages in the Extracts that ANIP seeks to rely upon that are conclusions based on matters from 2025, and this submission appears to have a sound basis. In other words, ANIP could have with reasonable diligence obtained its own expert evidence on the matters addressed in the Extracts in sufficient time to enable it to be tendered as part of its case and in accordance with the regime in place for the exchange of expert evidence. It was not denied any such opportunity.

79    The consequence is that although I accept that the Extracts might superficially meet a description of ‘fresh’ evidence because they were received by ANIP after the hearing, neither the Extracts viewed merely as documents, nor their content and the opinions expressed in them, fall within the conventional character of ‘fresh’ evidence.

The character of the evidence

80    Whether the evidence is expert evidence is relevant because expert evidence is of the nature of opinion evidence, it is usually dealt with in accordance with a strict regime under the Federal Court Rules 2011 (Cth), and because the Court is assisted by experts, through the usual processes of a hearing and cross-examination, to contextualise and understand expert evidence.

81    ANIP at times described the evidence as opinion or expert evidence but at other times distanced itself from such description. For example, at one point senior counsel for ANIP, when asked expressly if ANIP was relying on the Extracts as expert evidence, said:

We’re seeking to rely upon [the Extracts] as statements made in writing by a witness commissioned, essentially, and paid for by INPEX. They are statements in black and white. You don’t need to call a warm body to say did you write this. It’s on the page. We are asking your Honour to read what is said there and to accept it as the truth of what is put …

If we were to commission our own expert to give evidence on this, we would then have to follow the practice note, we would have to give notice and all the rest of it; there would be a report, and then the other side – INPEX/JKC, in this case – would [likely] challenge that evidence. That would be the position that would apply if we sought to call a new expert now, if Mr Moore and Mr McCormick were our experts. But they’re not. They’re experts called by INPEX, who have produced this for INPEX, for INPEX’s gain in another proceeding – have signed off that it’s correct – and we’re asking your Honour to say yes, accept it as being correct. What they say in these reports should be taken and accepted.

… Your Honour should read it, and your Honour should consider what weight you attribute to the considered expert opinions of Mr Moore and Mr McCormick, who are relied upon in this proceeding, and whether you think that what they say in a report for the Supreme Court proceedings contains material your Honour can accept. And that’s the short point of it. We’re not in the territory of the practice note because we’re not trying to call a new expert. We’re trying to pick up on – it’s the equivalent of an admission.

82    There were other indications in the submissions that ANIP accepts the character of the Extracts as being expert evidence. At one point in ANIP’s written submissions it states:

The pages of the Further Reports that the Respondents seek to tender contain statements (e.g. of observations made and tests undertaken) and expert opinions of Mr Moore and Mr McCormick that the Respondents seek to tender for the truth of the matters asserted.

83    In oral submissions, having referred to photographs and observations recorded in the Extracts, counsel for ANIP submitted:

And I will come back to where Mr Moore draws this together, but those are observations that he has made of what he has seen in bringing his expertise to bear … This is an expert, in a considered written report signed by him, writing his opinions. It’s not some casual off-the-cuff email that needs explanation; it’s material produced by INPEX’s own expert, with their assistance, about what he has seen …

84    Although it is true that the Extracts contain observations (that in isolation might be considered ‘facts’), those observations are then interpreted as necessary by someone with expertise and used by Mr Moore to form his opinion. In this regard I accept the submission made by INPEX that:

… there’s the crossover point. You cannot surgically separate the observations contained in an expert report from a site visit, where an experienced person looks at insulation, decides what to do with it, makes observations and knows where to look on the one hand, and the opinions drawn from that on the other hand. There’s no bright line that divides it. So even if my friend was to say, look, we will just rely on [the Extracts] for the purpose of the factual observations, we say that that’s not a permissible or meaningful or sensible distinction.

85    To deny that the Extracts are of the nature of expert evidence, and to attempt to excise and rely only on certain ‘facts’ would be an unfair characterisation of the work done by those Extracts – which was to provide expert opinion on highly specialised matters of which the Court cannot properly take judicial notice.

86    Acknowledging that the Extracts have not been read in the Insurance Proceedings and have no current evidentiary status, for present purposes I consider the Extracts are drawn from and have the character of expert reports and would, in the ordinary course, be subject to Pt 23 of the Rules if relied upon in these proceedings. The dictionary in Sch 1 of the Rules defines expert evidence as the evidence of an expert that is based wholly or substantially on the expert’s specialised knowledge. And an expert report means a written report that contains the opinion of any expert on any question in issue in the proceeding, based wholly or substantially on that expert’s specialised knowledge.

87    The Extracts are properly considered expert evidence.

Forensic decision/reason evidence not called at trial

88    ANIP did not adduce evidence or otherwise explain why it did not call evidence from a suitably qualified insulation expert during the trial in relation to its insulation apportionment or contributory negligence claims.

89    I am left to assume a forensic decision was made not to do so (save for the late and withdrawn evidence of Mr Lumley). ANIP had the opportunity to participate in the regime for the exchange of expert evidence. This is not a case of an error being made in the running of a case, but a deliberate decision. Even when ANIP sought to file a report late, INPEX did not oppose that course, although it sought to place conditions around its use, no doubt to guard against unfair prejudice from its late provision. The fact that ANIP’s late response in proposing to rely on Mr Lumley’s evidence ultimately did not assist it is a product of its forensic decision-making in relation to the conduct of the trial. It was unfortunate for ANIP that it was disclosed during the hearing that Mr Lumley lacked relevant expertise (amongst other issues with his evidence), but his late selection was part of ANIP’s trial decision-making.

INPEX – materiality and prejudice

90    In considering materiality, it is important to distinguish between the positions of INPEX and JKC. Consistent with the way oral submissions were made, I will address INPEX’s position first.

91    INPEX submitted that the Extracts, if admitted, would not affect the result, a matter that tells against re-opening for the purpose of its admission. Fresh evidence should be admitted ‘only when it is so material that the interests of justice require it, and the evidence if believed would most probably affect the result’: Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-94 (Toohey J). See also Briggs at [26]-[27] and cases cited; Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 3) [2024] FCA 643 at [36] (Jackson J).

92    ANIP submitted there was no defined minimum threshold of probative value.

93    ANIP cited McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 89 at [68], where Ward J said the following (emphasis added):

[56]    Turning to the evidence here sought to be tendered, as noted above there is no doubt that it would not have been possible for it to be tendered by the McLaughlins during the hearing. There was no suggestion that the admission of this evidence would lead to any further evidence being sought to be tendered by the defendant, or any further submissions being made, hence there is no potential for it to waste time. The question then is simply whether it has sufficient relevance and probative value (or it is otherwise in the interests of justice) that it should be admitted.

…

[68]    Further, although I accept that there is force in the submission made by Mr Priestley on the issue of relevance, I am troubled by the fact that information going to the financial position of the company, which was apparently available during the hearing (such as the existence of a statutory demand and the commencement of winding up proceedings), was not made known to the plaintiffs or to the court at that stage. Whether or not the defendant considers that information of this kind had probative value, there can have been no doubt in the mind of the defendant and its advisers that the plaintiffs contended that it was highly relevant. In those circumstances, where there is any possibility that this information will be relevant and may have probative value in assessing the quantum of any damages recoverable by the plaintiffs, I consider that it should be admitted and I am prepared to give leave to re-open the proceedings for that purpose.

94    I do not consider Ward J was postulating a general threshold of ‘any possible relevance’ for admission. Her Honour’s observation was made in the context of a troubling omission to disclose pre-existing documents during the hearing, a narrow number of specific financial documents to be tendered, and no suggestion that their tender would lead to further submissions being made or any time being wasted. That is not this case. I would apply the approach endorsed by each of Toohey J, Murphy J and Jackson J in the respective authorities referred to above.

95    ANIP further submitted that probative value is not determinative of the outcome, and I accept that submission. It is but one matter to be taken into account.

96    INPEX’s submissions insofar as materiality was concerned had three key limbs.

97    First, it referred to the legal apportionment question and whether the damage or loss caused by JKC’s design and use of the FEF system caused the same damage and loss caused by the use of I228. INPEX says the Extracts do not assist in resolving what is fundamentally a legal issue.

98    Second, INPEX submitted that ANIP seeks to rely on the Extracts to assert that INPEX is running inconsistent cases in the respective proceedings, a matter said to be relevant to the exercise of the discretion to re-open.

99    Third (and relatedly), it referred to the three matters identified by ANIP and referred to at [54(f)] above. INPEX submitted that the first of these matters (whether the FEF system was fit for purpose) was not seriously in dispute as between INPEX and ANIP in the INPEX Proceeding, a point that ANIP had acknowledged in its submissions. It follows that the evidence would not ‘most probably’ affect the result in ANIP’s concurrent wrongdoer defence against INPEX. As to the second and third matters (reasons FEF system not fit for purpose and consequence of failure of mastic), INPEX observed that ANIP appeared to contend the Extracts address the allegation that JKC failed to exercise reasonable care. To the extent ANIP asserted the Extracts were relevant to the question of rectification in the INPEX Proceeding, then contrary to ANIP’s submissions, the Moore Extract did not establish what INPEX relied upon as its ‘high point’: that is, it did not support a finding that INPEX would have to replace all FEF due to defective design over the life of the plant.

100    Because INPEX acknowledged in the INPEX Proceeding that the FEF was not fit for purpose (confirmed in its submissions), I accept that the evidence in the Extracts is not required for its acknowledgement to stand. Therefore, the relevance of the Extracts to INPEX’s case relates to the alleged inconsistency of the claims in the respective Courts and the extent of rectification.

101    INPEX has at all times stated that it is not running inconsistent cases. I note that the insurers and their lawyers were present and observed much of the trial in this Court.

102    INPEX does not run a case in this Court, or seek an assessment of damages, on the basis that all FEF must be removed. In its case in this Court, INPEX submitted that it is implementing a risk-based approach to the rectification of I228, prioritising work by reference to the likely level of risk to plant integrity. In this regard, INPEX relies on the evidence of Mr Jarvis. Relevantly, Mr Jarvis gave evidence to the effect that: (a) the I228 issues, and not the FEF issues, are the primary cause of the work involving the removal of FEF; (b) INPEX has not removed and replaced (and does not currently plan to remove and replace) all of the FEF on the plant; and (c) absent the I228 issues, it is likely that there would be no large-scale removal and replacement of FEF.

103    On the other hand, in the Insurance Proceedings, where INPEX and its insurers contest the scope of contractual terms of insurance policies and the ‘Damage’ to which they respond, a different point is addressed. INPEX claims amounts payable under the policies, rather than statutory damages. The point is summarised by INPEX as the cost of returning the product (FEF) to its state prior to adverse physical alteration. MW insulation is not the subject of the Insurance Proceedings. INPEX expressly pleads in the Insurance Proceedings that in broad terms, and consistent with its position in this Court, INPEX only intends to remove and replace FEF as part of rectifying I228 on the Project. It makes no allegation that the large-scale removal and replacement of FEF on the Project would be reasonably required for the safe operation of the plant in the absence of the I228 issues.

104    Therefore, INPEX submitted, its success in the Insurance Proceedings does not hinge on proof that it intends to remove and replace all or most of the FEF on the Project, or that it would intend to do so absent the damage to the I228. Rather, the key enquiry in those proceedings focuses on the occurrence of ‘Damage’ within the codified meaning of the relevant insurance policies. Pursuant to the policies, INPEX can recover for Damage to FEF: (a) without ever intending to remove and replace (or rectify) the FEF by reason of the Damage to FEF; and (b) whether INPEX will remove and replace the FEF in order to access and rectify the underlying I228.

105    The Moore Extract, relevant to the nature of the dispute in the Insurance Proceedings, addresses the question of the cost of ‘returning the FEF to perfection’. In doing so, Mr Moore does not say any such task will be undertaken. He responds to an assumption he was asked to make. He does not say whether as a matter fact the FEF will all be removed and replaced.

106    INPEX submitted that an examination of elements of Mr Moore’s opinion reveals it is based on assumptions and addresses certain hypothetical scenarios relevant to the issues in the Insurance Proceedings (including by focusing on the hypothetical remediation scope required to remedy a physical alteration, and not the remediation which is required to permit the safe operation of the Project plant). Notably, Mr Moore makes clear the limitations of his opinion on rectification beyond the Insurance Proceedings (at [20.2] of the Extract, emphasis added, footnote omitted):

I understand that no standalone repair or replacement of the FEF System is occurring post-RFSU [ready for startup] (outside of the remediation of I228). I answer this question on the basis that remediation is required to remedy the physical alteration such that it is returned to its condition prior to the physical alteration occurring, and not the remediation which is required to permit the safe operation of the Plant. In answering this question (and in later questions concerning remediation) I will consider degradation of Arma-Chek mastic via erosion and thermal degradation together due to the physical similarities in the nature of these damages and the resultant similarity in their reinstatement works. I will first answer all parts of this question for the adverse physical alteration of mastic degradation, and then for water damage.

107    In other words, it is apparent that Mr Moore understood that despite instructions he may have been given to assume otherwise for the purpose of his report in the Insurance Proceedings, no standalone repair or replacement of FEF was being undertaken by INPEX other than for the purpose of remediation of the I228.

108    As noted, ANIP did not adduce expert evidence that the insulation issues are a material cause of the I228 rectification works. It is apparent that ANIP now seeks to rely on the Extracts in these proceedings as evidence in support of that underlying assumption and to shore up its case. However, it is unclear on what basis the Court could properly elevate Mr Moore’s evidence, which is based on an assumption and with clear limitations, to probative evidence that INPEX needs to remove and replace all (or substantially all) of the FEF, outside of the I228 remediation, even accepting (as INPEX does) that there are issues with the FEF.

109    It is not possible on an interlocutory application to delve fully into the detailed trial closing submissions made by the respective parties, and nor is it appropriate to pre-empt findings that might be made. There is other important evidence relied upon by the parties, including documentary evidence tendered during the hearing, that will be taken into account in relation to the many issues raised between them.

110    My focus is on the Extracts. However, I am not satisfied that there is a sufficient prospect that the Extracts achieve what ANIP submits they might achieve in relation to the inconsistency or insulation apportionment issues raised against INPEX, once the assumptions upon which Mr Moore proceeded in forming his opinion and the related qualifications (which will not be explained or addressed further by Mr Moore for the benefit of this Court) are taken into account.

111    In considering the issue of materiality I also have regard to the fact that ANIP seeks to tender the Extracts, which are otherwise unsworn evidence, ‘as documents’. Ordinarily the role of an independent expert witness is to assist the trier of fact to understand and draw conclusions from what might be complex evidence (as unquestionably the evidence is in this case). ANIP’s approach is that the Court would be left to read, understand and make what it can of the highly specialised Extracts, without the context that is usually provided by an exchange of expert evidence, a conclave, the opportunity to question and the elucidation provided by cross-examination.

112    Assessing the materiality and probative value of specialised documentary evidence in such a scenario risks error and misconception on the part of the trier of fact, such that any such evidence could be approached and utilised only with great caution.

113    ANIP submitted that expert reports are often tendered in litigation without the need for cross-examination. So much is true, but that course is undertaken having regard to the nature of the particular evidence.

114    INPEX’s primary position is that the case should not be re-opened, and that the Extracts are not admissible and should not be admitted having regard to the applicable principles. INPEX submitted, however, that if they were admitted then it would not seek to adduce further evidence as a result, consistent with its submission that the Extracts do not assist ANIP in its case against it. However, it maintains its position based on prejudice ([55(g)] above) and anticipates it would need to make further submissions if the Extracts were admitted against it.

115    As will be seen, JKC’s position on prejudice is more marked. When considering INPEX’s position, I must consider the overall effect of the proposed re-opening and prospective tender of the Extracts, having regard to the conduct of the trial and the interests of the administration of justice as a whole.

JKC – materiality and prejudice

116    JKC adopts much of what was said by INPEX in opposing the proposed re-opening or tender of the Extracts. In addition, JKC emphasised the prospect of real prejudice. The reports of Mr Moore and Mr McCormick prepared for the Insurance Proceedings were not filed by or prepared for JKC.

117    JKC’s position is that it will be prejudiced by the admission of the Extracts and such prejudice cannot properly be met in circumstances where it ran its case on a particular basis, made forensic decisions on a particular basis, and its case cannot now be ‘unscrambled’. All aspects of its preparation and conduct of the trial, including its forensic decision-making, were conducted without any notice that ANIP sought to rely on such evidence.

118    JKC observed that ANIP said nothing in its oral opening about the cross-claim against JKC. Very little was said about it in written opening submissions, and no expert evidence was relied upon.

119    It was not until closing submissions that ANIP referred to certain documents drawn from INPEX’s materials in support of its insulation case against JKC, referring to matters which JKC objected to at the time as exceeding the bounds of the pleaded case against it. As already noted, it is the pleaded case that informs the evidentiary matters that JKC might have anticipated and prepared for. JKC submitted that in conducting its insulation case in that way, ANIP denied JKC the opportunity to respond to the various threads that ANIP sought to raise. JKC has also objected to any reliance by ANIP on INPEX documents as admissions against JKC. What use I am able to make of those documents in light of JKC’s objection will be determined in the principal judgment as necessary.

120    However, ANIP’s approach highlights the lack of notice provided to JKC of the case now put against it. For example, it became apparent in closing submissions that ANIP now seeks to rely on the selection by JKC of a chloride-containing foam in the FEF insulation system as a defect or a matter going to fitness for purpose and as part of the contributory negligence case.

121    The use of a chloride-containing foam is but one of the matters addressed in the Extracts, and what is said is clearly expert evidence for the reasons I have already given.

122    ANIP emphasised on this application that there had been some (limited) references to chlorides in the expert reports in the present proceedings. Mr McCormick referred to some chloride testing he had undertaken. Mr Moore noted Mr McCormick had undertaken chloride testing and deferred to his expertise. Mr Moore gave some (very) limited evidence about it under cross-examination when he was re-called to give evidence on 9 September 2024 (ANIP relevantly referred to the fact that Mr Moore agreed with the proposition put to him by counsel that ‘water acting on the foam has leached out the chlorides and made it available, so to speak, to cause problems’).

123    However, the use or selection of chloride-containing foam was not a matter explored during the six-day concurrent evidence session at which JKC’s expert on I228 was present.

124    Regardless, the fact that chlorides were mentioned by Mr McCormick and Mr Moore in the limited manner described in the present proceedings does not of itself justify the admission of further expert evidence on the topic in the expanded manner proposed by ANIP, and having regard to the matters discussed at [117]-[119] above. Counsel for ANIP said in oral submissions that the evidence in the Extracts in material parts elaborates on the expert evidence in the present proceedings, including in relation to chlorides and ‘new degradation mechanisms of thermal decomposition’. That is, there is an elaboration of existing evidence and new material contained in the Extracts, which was not before JKC in the proceeding in this Court.

125    As JKC submitted, it is not to the point that the reports were prepared by experts engaged by INPEX in the Insurance Proceedings and were not prepared by experts that ANIP itself has engaged. In either scenario JKC has had no opportunity to deal with such evidence, including the elaborated material about chlorides, chloride-containing foam and new degradation mechanisms, but ANIP seeks to deploy such material against it. In my view, if the Extracts were tendered and admitted, there is the prospect of real prejudice to JKC in having no opportunity to address the expert evidence that ANIP now seeks to rely upon, not only in relation to chlorides, but in relation to the numerous other representations set out in the Extracts which ANIP invites me to assume are correct and make findings about.

126    I asked senior counsel for JKC what its practical response might be in a scenario where the proceedings are re-opened and the Extracts are tendered and admissible, having regard to ANIP’s submission that I should simply receive the documents. Unsurprisingly, counsel was not able to commit to any position as to the extent to which JKC might be required to obtain and tender further evidence. There would be many variables to be considered, including the manner in which it had otherwise run its entire case.

127    Before leaving this topic, it is necessary to address a thread that underlay several submissions made by ANIP insofar as JKC’s position is concerned. ANIP suggested that JKC cannot be heard to complain about the tender of documents prepared by INPEX’s lawyers or experts, because INPEX and JKC are, in effect, ‘joined at the hip’ in the proceedings in this Court and in the Insurance Proceedings.

128    Insofar as the Insurance Proceedings are concerned, ANIP’s argument has its genesis in a global settlement deed (GSD) made between INPEX and JKC in October 2021.

129    Prior to the execution of the GSD there were various disputes and an arbitration between INPEX and JKC relating to the EPC Contract. Under the GSD, INPEX and JKC agreed on a ‘no admissions’ basis to settle all disputes arising between them out of JKC’s performance under the EPC Contract. They agreed to pursue claims against the insurers and ANIP on certain terms. They agreed they have a common interest in pursuing the insurers in relation to non-conformance relating to the I228 and the FEF insulation system, and in pursuing ANIP in relation to the use and suitability of I228. The GSD provides for aggregation of any amounts recovered in the respective proceedings, the manner in which all or part of those amounts are to be retained by INPEX or JKC, and the circumstances where JKC may be required to make any further payment to INPEX.

130    As to the Insurance Proceedings:

(a)    JKC assigned its rights in the proceedings to INPEX;

(b)    from the date of assignment INPEX is responsible for all substantive matters relating to the proceedings;

(c)    JKC has an obligation to cooperate by providing INPEX with access to its employees and documents as reasonably required for the purpose of prosecuting the proceedings; and

(d)    INPEX shall at its absolute discretion conduct all settlement negotiations.

131    The GSD does not otherwise provide for JKC to have any ongoing involvement in the Insurance Proceedings.

132    I also observe that JKC opposed any transfer of the JKC Proceeding to be heard with the Insurance Proceedings in the Supreme Court, submitting at the time that it would be dragged to the Supreme Court ‘kicking and screaming’ (JKC (No 5) at [45]), a submission that does not accord with it seeking to have any ongoing active role in the Insurance Proceedings.

133    Insofar as the present proceedings are concerned, they have been heard together for clear reasons of efficiency and unsurprisingly there has been a degree of cooperation between INPEX and JKC. Both INPEX and JKC have a common interest in the outcome of the proceedings. So much is in any event apparent from the fact they have both instituted proceedings against ANIP. The GSD also provides for cooperation between INPEX and JKC in relation to the separate proceedings against ANIP, but JKC is not obliged to pursue a strategy that would materially prejudice its interests. JKC has its own lawyers and its own experts in the present proceedings. It has been separately and pro-actively represented throughout. It has, from what I have observed, and having regard to the pleadings and submissions, run its own case although necessarily there has been considerable overlap as to parts of the respective cases. It called its own expert witness on the suitability and degradation of I228. There were certain differences in the evidence and opinions of the respective I228 experts for INPEX and JKC. None of that suggests that JKC in these proceedings cannot fairly challenge the tender of documents prepared by INPEX in the Insurance Proceedings.

Conduct of INPEX and JKC

134    ANIP submitted that INPEX’s conduct should be taken into account in relation to the question of leave, and I agree that is a relevant matter. However, the circumstances are removed from those the subject of Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, (upon which ANIP relied), where the successful party produced pre-existing documents after trial.

135    I am not satisfied that the Extracts were deliberately withheld from ANIP by INPEX or that there was contumelious conduct on its part, as suggested by ANIP (see also [60] above). As ANIP did not seek to adduce expert evidence on the insulation issue or to support the assumption it initially gave to its quantum expert, it is unsurprising that INPEX did not seek to rely on further expert evidence on that issue in these proceedings. There is no evidence from which I would draw an inference that the preparation of the Extracts was deliberately delayed for any inappropriate reason. The Extracts did not exist when ANIP closed its case and there is nothing improper in INPEX maintaining a position that ANIP would require leave to rely on them.

136    There is no evidence that the preparation and timing of the reports in the Insurance Proceedings or production by INPEX to ANIP was something that involved JKC. Therefore, and in any event, ANIP’s criticisms of INPEX’s conduct cannot similarly be directed at JKC.

The need for finality

137    The authorities highlight the need for finality in litigation. This is of some importance in litigation such as this where the Project, and remediation of I228, remains live and ongoing and that will be so for many years. Writing of the principal judgment is underway and ongoing around concurrent judicial obligations. Without repeating what has been said in prior interlocutory judgments about the scale of this litigation, the reality is that finalisation of judgment will be some time off. For a start, a further hearing is scheduled relating to the reference.

138    There remains the prospect having regard to the life of the Project and its remediation and maintenance schedule that there will be factual matters that arise or progress on site between the close of evidence and delivery of judgment. A principled approach must be taken to any application to re-open, or there is a risk that the end date for determination is repeatedly deferred and Court resources are repeatedly re-engaged.

139    Even in circumstances where events are not ongoing, as highlighted in Briggs it is not only the interests and prejudice of the parties that are considered, but also the public interest in the finality of litigation, including the availability of public resources.

140    This is a matter to which I must give real weight in the circumstances of this case. All parties were (objectively) well-resourced and were on notice for some time of the trial dates, dates reserved in conjunction with the parties. They were well-placed to fully prepare for the trial, including making forensic decisions in relation to evidence.

141    The fact that they were well-resourced does not mean the Court should proceed on the basis that the parties can afford to continue running a trial indefinitely. That is not to the point, even acknowledging there is a significant measure of loss in issue between the parties. I must have regard to the overarching purpose of modern civil litigation practice and procedures in seeking to facilitate the just resolution of disputes as efficiently as possible. This includes having regard to the allocation of public resources. The proceedings have culminated in a very long trial, as these things go. Substantial judicial and administrative resources of the Court have been directed to it. The progress and resolution of other matters is inevitably affected by the allocation of Court resources.

142    It might be thought that ANIP’s proposal that the Extracts simply be handed up and relied upon by the Court might not result in any significant delay, being one aspect of finality (the boundaries of respective cases being another). However, experience suggests that ‘handing up the documents’ would not be the end of the matter. Even if the Extracts were admitted, there would be further submissions and it would also be highly likely, in my view, that JKC would seek to adduce further expert evidence (acknowledging it cannot presently commit to a position), leading to further rounds of evidence and submissions, costs and delay.

Admissibility – hearsay nature of the Extracts

143    Because this is an application to re-open and not a formal tender, the following observations go to the likelihood that the Extracts would be admitted and thereby have an influence on the outcome of the proceedings. They should not be understood as rulings on evidence.

144    Further, and if I am wrong as to whether leave to re-open is required, my reasons reflect the view I would likely reach on a contested tender of the documents in the trial (and contest by INPEX and JKC can be assumed).

145    In support of its application ANIP submitted that the Extracts would be admissible. They are hearsay in nature, as ANIP accepts.

146    There is a question as to whether they fall within any of the exceptions to the hearsay rule in Pt 3.2 of the Evidence Act.

Previous representation – s 64(3) Evidence Act

147    The Extracts are evidence of ‘previous representations’ made by Mr Moore and Mr McCormick, being representations made by them otherwise than in the course of giving evidence in this proceeding: see definition of ‘previous representation’ in the Dictionary. Those ‘previous representations’ are hearsay statements as ANIP seeks to adduce them to prove the matters that Mr Moore and Mr McCormick assert in the Extracts.

148    ANIP relies on s 64 of the Evidence Act, which relevantly provides as follows:

64    Exception: civil proceedings if maker available

(1)    This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

…

(3)    If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a)    that person; or

(b)    a person who saw, heard or otherwise perceived the representation being made.

(4)    A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

149    ANIP contends that Mr Moore and Mr McCormick have been called to give evidence in the proceedings in this Court (by INPEX) and so the previous representations made by them in the Extracts are caught by the text of the hearsay exception. A limitation on their admission under s 64(3) would have arisen only if it was sought to tender the Extracts before their examination in chief.

150    It would follow from ANIP’s submission that a document containing a previous representation by a witness could be tendered at any time once the witness has been excused, and without the opportunity for the witness to be cross-examined about the document, or for it otherwise to be tested.

151    In Osborne Metal Industries v Bullock (No. 1) [2011] NSWSC 636 the tender in reliance on s 64(3) of an email written by the plaintiff’s witness Mr Borsak was rejected. The tender was proposed after Mr Borsak had given evidence in chief, had been cross-examined and had been excused.

[25]    There is no doubt that Mr Borsak was called to give evidence. However, he did not give evidence about the document, or about the representations contained in it. On the contrary, the tender is now made a day and a half after Mr Borsak completed his evidence and was excused from further attendance. There is no offer made to recall him.

[26]    It will be observed from s 64(1) that the area of its operation is that ‘a person who made a previous representation is available to give evidence about an asserted fact’. In those circumstances, if the person is giving evidence (see subs 3 – ‘has been or is to be called’), the person can give evidence of the representation. In my view, when one reads subs 3, in conjunction with subs 1, it is clear that the exception is predicated upon the ability of the party against whom the document (and again, I will confine myself to documents) is tendered to cross-examine the person about the representation on which reliance is placed. That purpose is not met in circumstances such as the present.

[27]    In any event, even if I were wrong in that construction, the fact that Mr Bosak is unavailable, and cannot be tested on the representations that are now relied upon to re-establish his credit, is a powerful - in my view dispositive - reason for refusing, in the exercise of the general discretion given by s 135, to admit the document.

152    In Roohizadegan v Technology One Limited (Trial Ruling) [2025] FCA 309, McElwaine J (at [28]) referred to Osborne as ‘authority to the effect that where a witness has concluded giving evidence and is not to be recalled, the provision does not apply’. His Honour said that if he was otherwise disposed to permit evidence constituting a representation of the applicant to be adduced, it would be on condition that the applicant agreed to being recalled for further cross-examination.

153    The analogous provision was also referred to in Ying Mui v Frank Kiang Ngan Hoh (Ruling No 2) [2016] VSC 531 (Vickery J), an example where the s 64(3) exception was found to operate. His Honour said at [16]:

The principal purpose behind s 64(3) is to maintain fairness in the trial process in relation to first-hand hearsay representations, whether the representations are contained in oral statements or in documents, but in either case when the maker of the representations has been or is to be called to give evidence. The discretion in s 135 may operate to support the objective of fairness. Whether that purpose is or is not achieved at the trial, will depend on the inexhaustible variety of individual circumstances which present themselves for consideration in the course of the evidence.

154    Relevantly in Ying Mui, the plaintiffs objected to statements in a witness statement about things apparently said in conversations with the witness by a party to the proceeding, Mr Hoh, on the ground of hearsay. Mr Hoh had completed his evidence, was cross-examined and excused from giving further evidence but there had been no reference to the precise conversations. However, the plaintiff parties were on notice of the subject matter of the representation because of the content of another witness statement, and Mr Hoh was available to be recalled and cross-examined if necessary. It was in those circumstances that the evidence of the conversations in the witness statement was admitted over the plaintiffs’ objection.

155    The operation of the provision was also considered in Australian Competition and Consumer Commission v BlueScope Steel Limited (No 3) [2021] FCA 1147 at [136] where O’Bryan J said:

On their terms, ss 37 and 64 of the Evidence Act allow the Court to receive into evidence a prior written statement of the witness as evidence of the facts stated in the statement: see J D Heydon, Cross on Evidence (12th ed, LexisNexis Australia, 2000) Ch 9 “The Course of Evidence” at [17320]. It would seem to be implicit in s 37(3) that the Court would only permit a written statement to be tendered as the evidence-in-chief of the maker if the statement were affirmed by the maker on affidavit or by oral testimony, enabling the maker to be cross-examined on the statement. Similarly, in Osborne Metal Industries (NSW) Pty Ltd v Bullock MFG Pty Ltd (No 1) [2011] NSWSC 636, McDougall J considered that the exception to the hearsay rule in s 64(3) is predicated upon the ability of the party against whom the document is tendered to cross-examine the person about the representations in the document (at [26]).

156    Otherwise, little guidance is provided by authorities or the academy in relation to the operation of the provision. ANIP relied upon Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; (2003) 130 FCR 569 at [19] in earlier closing submissions. The decision in Ringrow did not address s 64(3) or its applicability where a witness has concluded giving evidence

157    It is true, as ANIP submitted, that Mr Moore and Mr McCormick ‘have been called’ in the proceeding in this Court to give evidence. They travelled from the United Kingdom to do so, gave evidence during a six-day expert evidence conclave (and in Mr Moore’s case, for a further day by video link) during which they were cross-examined, and they were then excused. Further, ANIP has stated that it has no intention of calling them to give further evidence. There is no practical prospect that either will be re-called by INPEX to give further expert evidence on a different topic (FEF) in this proceeding, or that JKC would call them. There will be no opportunity for either to be ‘cross-examined’ in relation to the representations in the Extracts. There is no suggestion the evidence will be affirmed by oral testimony in this proceeding.

158    I agree with the approach in Osborne that the operation of s 64(3) assumes there will be the prospect of cross-examination if the representation is admitted into evidence. However, the text of s 64(3) might be construed differently such that the mere fact that a person has previously been called to give evidence, and in theory could become available again to give evidence (presumably even in response to a subpoena), might be sufficient to engage its operation. In a case such as this, where the party seeking to rely on the representations has no intention of calling the witness and the witness was originally called by another party in the proceeding, it is difficult to envisage how there would be an opportunity for cross-examination or how the section might be relied upon in manner that ‘maintains fairness in the trial process’.

159    Therefore, I do not consider it likely that s 64(3), properly understood, would support the admission of first-hand hearsay representations in the Extracts as an exception to the hearsay rule. And, as in Osborne, if I am wrong as to that, then s 135 (and s 136) would inevitably be called in aid.

Opinion evidence – s 79 Evidence Act

160    The exception in s 79 (for opinions based on specialised knowledge) operates as an exception to the opinion rule in s 76. It was unclear how ANIP sought to rely on this provision in the context of hearsay (see [54(b)] above), but its approach to s 79 rather confirmed the nature of the content of the Extracts as expert evidence.

Admissions – s 81 Evidence Act

161    Section 81 of the Evidence Act provides, subject to exceptions, that the hearsay and opinion rules do not apply to admissions.

162    As to the instructions provided to Mr Moore and contained within the Extracts, ANIP submitted that they are admissible against both INPEX and JKC as admissions.

163    There is a fundamental difficulty in assessing this argument because the submission was put broadly: that INPEX (by its lawyers in the Insurance Proceedings, A&O Shearman) has instructed Mr Moore to assume certain things, and to express his opinions on the basis of those things, and so it can be assumed that the basis is reliable and states facts that it can prove. ANIP asserted that by INPEX asking its expert to assume things, there was an implied representation by INPEX that it has the basis to prove any assumptions by provable evidence. Therefore, ANIP reasoned, the facts the subject of assumptions are admissions. As counsel for ANIP expressed it at one point:

So what Mr Moore is saying [in the Extracts] is what we were telling your Honour your Honour should find, and they’re his opinions. They’re expressed by reference to what he has seen, his undoubted, unchallenged expertise. It’s being put, or will be put, we expect, to the Supreme Court in respect of the same matters. And there is nothing wrong with your Honour saying, ‘I can have regard to that and fortify my findings that the same would occur in this proceeding’ …

164    ANIP did attempt to isolate certain assumptions within the instructions by way of example, but even then there is a limit as to what can be made of those assumptions. Some assumptions have evidently been put on a hypothetical basis. For example, one instruction put to Mr Moore was ‘[p]lease assume for the purpose of responding to this question that the I228 coating was achieving its intended function and use on the Project and did not require remediation in and of itself’. Mr Moore also qualified his instructions in some parts of the report, for example, the basis of his opinion referred to at [106] above. Some assumptions may not be made out in the Insurance Proceedings. The reports have not yet been read, refined, narrowed or challenged in any manner in the Insurance Proceedings. And yet I am asked to assume everything in the instructions is correct and proved by admission, thereby elevating their probative value beyond that which they might ultimately have in the Insurance Proceedings or, more relevantly, beyond the value they might otherwise have, had the instructions and Extracts been adduced by experts in the present proceedings and been the subject of cross-examination, re-examination and comment by other experts, thus contextualising it for the benefit of the Court.

165    There are a number of reasons that instructions to experts might be framed in the way that they are. Sometimes a range of scenarios are put to experts. Sometimes hypothetical circumstances are put to experts, including for the purpose of responding to other expert opinions. There is a real risk of being led into error for the finder of fact to assume each and every instruction by the instructing party to an expert is a fact that will be proved and should therefore have the status of being a reliable and proven admission.

166    Although ANIP identified certain instructions, it did not explain why the instructions as a whole should be considered admissions or the materiality of each admission. The nature of what is sought to be relied upon is important. In contrast to the position that more frequently arises, this is not an attempt to have one or two sentences in an affidavit or the content of a conversation received as an admission. Rather, it is an attempt to have received as fact numerous statements, questions and hypotheticals included in detailed science-based instructions given to highly specialised experts by separate lawyers to those retained in this proceeding.

167    I do not suggest that complex evidence cannot fall within the ambit of s 81, but in this case, I consider it unlikely that ANIP would persuade the Court on any tender of the Extracts that the lawyers’ instructions are properly to be regarded as admissions by INPEX of the facts referred to within them.

168    Even assuming any admissions by way of the instructions would be admissible against INPEX, it does not follow that they would be admissible against JKC. The s 83 exception to s 81 would ordinarily apply. Section 83 of the Evidence Act provides that s 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. A third party is defined in s 83 as a party to the proceeding concerned, other than the party who made the admission or adduced the evidence.

169    While ANIP appeared to accept in its May 2025 closing submissions that admissions are generally not admissible against third parties, it submitted that JKC and INPEX had a common purpose in prosecution of the Insurance Proceedings within the meaning of s 87 of the Evidence Act (‘Admissions made with authority’).

170    I have summarised above the provisions of the GSD in this regard.

171    The concept of a common purpose involves a combination or some form of preconcert formed between two or more persons to do an act or acts of a particular kind: Landini v State of NSW [2007] NSWSC 259 at [19(c)].

172    The provision is more usually relied upon in the context of criminal conspiracy or other contraventions, but its application is not limited to criminal matters. See the discussion by Gray J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794; (2007) 160 FCR 321 at [53]-[54] in a civil context.

173    For the purpose of s 87(1)(c), it must be reasonably open to find that the representations made in the instructions given to Mr Moore by A&O Shearman were made by INPEX in furtherance of a common purpose with JKC with which it acted in concert.

174    As to the nature of the common purpose, ANIP asserts it was ‘the pursuit of INPEX’s claims under the insurance contract (including the vindication of JKC’s rights)’.

175    The instructions to Mr Moore were for the preparation of a report that would potentially be relied upon by INPEX in the Insurance Proceedings. However, there is no evidence that once the GSD was executed, JKC continued to assert or seek vindication of its insurance rights. It assigned such interests to INPEX. There is no evidence JKC was involved in the decision to instruct the experts on the insulation issue in the Insurance Proceedings, that its consent to preparation or filing of the reports was sought or that its authority was otherwise sought or given. Having regard to the terms of the GSD, INPEX is prosecuting the Insurance Proceedings, and according to its sole discretion.

176    As already noted, the GSD refers to INPEX and JKC having a common interest in pursuing the insurers and ANIP. It can be accepted that INPEX and JKC have a common interest in the outcome, insofar as they both have an interest in seeking to recover losses caused by the use of I228 and where such losses might fall. However, a ‘common interest’ in litigation (something frequently shared by co-plaintiffs and co-defendants), without more, does not evidence a ‘common purpose’ within the meaning of s 87(1)(c).

177    Accepting that I am considering the issue in the context of an application for leave, I am not persuaded that ANIP has established on an objective basis to the standard required (‘reasonably open to find’) that there is a combination of acts or ‘preconcert’ between JKC and INPEX in the prosecution of the Insurance Proceedings at the time the instructions were given to Mr Moore and that the instructions were given to Mr Moore in the furtherance of such common purpose. Having regard to the GSD, those proceedings are being conducted by INPEX according to its sole discretion.

178    It follows that I do not consider it would be reasonably open to find on any tender that the representations by way of the instruction to Mr Moore were made in the furtherance of a common purpose within the meaning of s 87.

179    In any event, an application of the provision would not mean that the admissions would be admitted for a hearsay purpose or at all: discretionary exclusion or limits remain permissible pursuant to Pt 3.11 of the Evidence Act: Director of Public Prosecutions (Cth) v Kola [2024] HCA 14; (2024) 279 CLR 104 at [46].

180    Finally, ANIP relied on an order made during the case management of the proceedings on 27 October 2023. On that occasion I ordered relevantly that subject to any further order of the Court, evidence in the INPEX Proceeding be evidence in the JKC Proceeding, and conversely that evidence in the JKC Proceeding be evidence in the INPEX Proceeding.

181    The order does not assist ANIP. When it was made, no issue such as this was contemplated and self-evidently it was open for any party to vary such an order in relation to particular evidence at any time. That potential was expressly preserved.

Part 3.11 of the Evidence Act

182    Whether the additional evidence by way of the Extracts would be admissible and its probative value are also affected by the potential exercise of the discretion to exclude or limit the use of evidence under s 135 or s 136 of the Evidence Act.

183    JKC relies on the matters of prejudice already referred to in support of an alternative submission that if the Extracts are admissible, they should be excluded under s 135 of the Evidence Act on the basis that that their probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to JKC, or, alternatively, that the Court should place a limitation under s 136 on their use in ANIP’s case against it, on the basis that there is a danger that the Extracts might be unfairly prejudicial to JKC.

184    The matters with which those provisions are concerned have already been considered in the context of the application for leave.

185    If there were any cause to consider those provisions, it is very likely that I would have in any event relied on the discretion to exclude the Extracts under s 135, relying on matters of prejudice already stated. Alternatively, it is very likely that I would have placed a limitation under s 136 on their use against JKC, again for those reasons.

Determination

186    Having regard to the above matters and for the following reasons, leave to re-open in order to tender the Extracts is refused, in each of the INPEX Proceeding and the JKC Proceeding. I do not consider it is in the interests of justice to grant the application.

187    As explained, I do not consider the Extracts are fresh evidence as that term is understood in this context. They constitute expert evidence upon which ANIP seeks to rely. It is evidence of a kind that ANIP could have procured and tendered in the course of the trial. Nor is this otherwise a case falling within the recognised categories of cases where leave to re-open might be granted, acknowledging the categories are not closed.

188    ANIP had every opportunity to adduce evidence in support of a case based on the FEF insulation system if it wished to do so and must abide by its forensic decisions in that regard. The discretion to re-open is not ordinarily exercised where tactical decisions have been made. No reason for its decision to refrain from adducing expert evidence in support of its insulation case prior to trial was provided. INPEX agreed to accommodate a late decision by ANIP to adduce the report of Mr Lumley, and the terms INPEX placed around its consent to that course reflected a legitimate concern that the parties should make strategic and forensic decisions relating to the conduct of the trial with notice of the boundaries of the respective cases. That concern is even more justified at this stage of the litigation.

189    ANIP’s application is firmly founded in a context where nothing further happens in relation to the Extracts if its application is allowed – they are handed up and I am left to make what I can of them in order to make findings of fact. They have not been the subject of the usual expert evidence regime that applies under the Rules for expert evidence relied upon at trial.

190    In assessing what facts or inferences are to be drawn from evidence it is important to apply the precept that, ultimately, a tribunal of fact must feel an actual persuasion of the fact or inference before that fact or inference can be found. That task is made difficult absent the usual expert evidence processes (including during an oral hearing) that assist the Court in understanding and assessing expert evidence. There is a real risk that this could lead the Court into error if it were to rely on the new evidence. That would be prejudicial to the administration of justice, independently of any prejudice to the parties.

191    As to the latter prejudice, if admissible, the admission of the Extracts would cause prejudice to INPEX and JKC as to the manner in which they ran their cases and as to the effect on finality of the litigation, such that it would be unfair to now allow it. The prospect of prejudice is more striking in relation to JKC, but in the context of forensic decisions that have already been made over the course of a long trial, is also real in relation to INPEX.

192    The Extracts contain new material and facts that JKC has not had the opportunity to address. Nor, having regard to the manner in which ANIP opened and pleaded its case, can it fairly be said that JKC should have foreshadowed additional factual matters or particulars that ANIP now seeks to rely upon. Having regard to the cross-claim, this is relevant to both the INPEX Proceeding and the JKC Proceeding.

193    ANIP has not established that the Extracts are of significant probative value in relation to INPEX’s case (acknowledging disputes in that regard remain to be resolved), but regardless, I accept INPEX’s submission that prejudice would result from in effect unzipping the trial, which has been conducted by it on a particular basis, with forensic decisions that cannot now be disentangled.

194    Considerations of the finality of litigation and the availability of public resources tell against a course which risks the unravelling of aspects of the trial. Delay and expense would inevitably be incurred in attempting to meet the prejudice of such an unravelling.

195    I have set out the concerns as to prejudice if the Extracts were admitted into evidence. However, the concerns that I have expressed about their admissibility suggest that even if leave were granted to re-open, there is a real prospect that the Extracts would not be admitted and so a re-opening would have no material effect on the outcome of the trial.

196    I should add that even if leave to re-open were not required on the basis that the circumstances were such that the hearing was to be treated as still on foot, an application of the discretionary factors the subject of ASIC v Rich would have led to a similar outcome.

197    I will reserve the question of costs for any submissions in due course.

Associate:

Dated:    11 May 2026