Australian Securities and Investments Commission v Macdonald (No 10)

The case of Australian Securities and Investments Commission v Macdonald (No 10) involved the 12th defendant applying to tender 87 financial market analysts' reports in relation to an ongoing legal dispute. The dispute centered around allegations of breaches of the Corporations Act 2001 (Cth) by the Australian Securities and Investments Commission (ASIC). The court was required to determine whether the 12th defendant could challenge the underlying assumptions of an expert merchant banker called by ASIC, who had already opined on 69 other reports. The key issue was whether the 12th defendant could tender the 87 reports, which had not been previously put to the expert, and whether ASIC should be allowed to re-open its case or present a case in reply by recalling the expert.

The court examined the relevance of the 87 reports in light of the expert's evidence and the principle set out in Browne v Dunn (1894) 6 R 67, which established that it is generally not permissible to challenge the assumptions of an expert after their evidence has been given. The court considered the discretion available under the Evidence Act 1995, s 135, to determine whether the reports should be admitted or whether the case should be re-opened or replied to by ASIC. The court also assessed the relevance of some of the reports to other issues in the case.

In its reasoning, the court determined that the 12th defendant was not entitled to challenge the expert's assumptions by tendering the 87 reports, as this would be an impermissible challenge to the expert's evidence. The court found that the reports were not relevant to the issues already considered by the expert, and that the discretion under the Evidence Act 1995, s 135, should not be exercised to allow the reports to be admitted. The court concluded that ASIC should not be required to re-open its case or present a case in reply by recalling the expert, and that the reports should be excluded from evidence. The court did, however, find that some of the reports were relevant to another issue in the case and could be considered in that context.