Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd

The appeal in *Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd* concerned a litigant in person, the appellant, who was prevented from tendering expert evidence at trial. The respondent, Genworth Financial Mortgage Insurance Pty Ltd, objected to the admissibility of this evidence on the grounds that it did not comply with UCPR r31.23. The primary judge disallowed the evidence, and the appellant subsequently appealed to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the trial judge had erred in disallowing the appellant's expert evidence and, consequently, whether the judge should have exercised their discretion under r31.23(3) to either admit the supplementary expert reports or grant an adjournment to allow the appellant to comply with the rules. The Court was required to determine the correct test to be applied under r31.23(3) and whether the trial judge's failure to consider the appellant's materials and case constituted a miscarriage of justice.

The Court of Appeal held that the trial judge had applied the wrong test in disallowing the evidence, as r31.23(3) does not mandate "exceptional circumstances" for the admission of supplementary expert reports. The Court reasoned that the respondent had not objected to the supplementary reports until the commencement of the trial, and alternatively, an adjournment should have been permitted to enable the appellant to rectify any non-compliance. The overriding duty of a trial judge to ensure a fair trial was paramount, and the appellant's case had not been considered.

Consequently, the appeal was allowed, and a retrial was ordered.