Commonwealth Bank v Iinvest (No 6)

The case of Commonwealth Bank v Iinvest (No 6) was brought before the court to resolve issues surrounding the admissibility of a supplementary expert report served out of time. The central issue was whether the court should grant leave for the tender of this report, in accordance with Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to determine the meaning of "merely updates" in Rule 31.28 (4)(b) and whether the opinion expressed in the supplementary report was based wholly or substantially on the expert's specialised knowledge, as required by section 79 of the Evidence Act 1995 (NSW). The court was also required to exercise its discretion under section 192 of the Evidence Act 1995 (NSW) to decide if leave should be granted for the supplementary expert report.

The court's analysis began with the interpretation of Rule 31.28 (4)(b) and the term "merely updates." The court found that the supplementary report did not introduce new material facts or issues but rather provided additional information that supported and updated the previous expert report. This conclusion aligned with the court's understanding of the rule, which permits supplementary reports that serve to update the original report. Furthermore, the court held that the opinions expressed in the supplementary report were based wholly or substantially on the expert's specialised knowledge, satisfying the requirements of section 79 of the Evidence Act 1995 (NSW). In exercising its discretion under section 192 of the Evidence Act, the court found that granting leave for the supplementary report would not cause an unfair advantage to the opposing party or prejudice the administration of justice.

Consequently, the court granted leave for the tender of the supplementary expert report. The court recognised the importance of allowing supplementary reports that provide updated information, particularly when they are based on the expert's specialised knowledge and do not introduce new material facts or issues. By granting leave, the court ensured that the parties could benefit from the most current and relevant expert evidence in the case. This decision underscores the importance of striking a balance between the need for updated expert evidence and the potential prejudice that may arise from serving reports out of time.