Coating supplier eyed expert reports from a parallel insurance case – judge said no
The Federal Court has knocked back AkzoNobel's bid to reopen its case and tender extracts of expert reports filed in separate Supreme Court insurance proceedings.
Justice Banks-Smith handed down the decision on 11 May 2026 in INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 7) [2026] FCA 571, dismissing the respondents' interlocutory application filed 1 July 2025.
The proceedings concern the degradation and failure of a coating known as I228, which ANIP supplied for use on an LNG Project near Darwin. INPEX, the Project operator, and JKC, which undertook engineering, procurement, supply, construction and commissioning work, both brought claims against ANIP alleging misleading or deceptive conduct under the Australian Consumer Law.
ANIP sought leave to tender extracts of reports prepared by two experts for separate Supreme Court of Western Australia proceedings between INPEX and its insurers. The Extracts addressed the flexible elastomeric foam (FEF) insulation system used on the Project – a topic that fell outside the expert evidence in the Federal Court proceedings, even though INPEX had called both experts to give evidence on the I228 coating itself.
The Extracts came into existence after evidence closed in the current proceedings. ANIP received them on 20 May 2025, after issuing a notice to produce and INPEX's unsuccessful application for dispensation.
Justice Banks-Smith found that ANIP required leave to reopen its case. She determined that the Extracts did not amount to fresh evidence in the conventional sense, as they contained information based on pre-existing facts and circumstances that ANIP could have examined by engaging its own expert during the trial. ANIP had retained an insulation expert for that purpose but withdrew reliance on his report during the hearing.
She found that ANIP had every opportunity to adduce evidence on the FEF insulation system and must abide by its forensic decisions.
The court rejected ANIP's argument that the Extracts would be admissible under s 64(3) of the Evidence Act 1995 (Cth) as an exception to the hearsay rule. She preferred the approach in Osborne Metal Industries v Bullock (No. 1) [2011] NSWSC 636, which holds that the provision assumes the prospect of cross-examination. Since ANIP did not intend to call either expert and INPEX would not recall them on the FEF topic, no such opportunity existed.
Justice Banks-Smith also rejected ANIP's contention that instructions given to one of the experts by INPEX's lawyers in the Insurance Proceedings constituted admissions under section 81. The court found ANIP had not established that JKC and INPEX shared a common purpose within the meaning of section 87, despite the global settlement deed between them. She observed that a common interest in litigation, which co-plaintiffs and co-defendants frequently share, does not by itself evidence a common purpose.
The court emphasised the prejudice that would result from reopening, particularly to JKC, which conducted its entire case without notice that ANIP would rely on such evidence. The Extracts contained new material – including matters relating to chloride-containing foam and degradation mechanisms – that JKC had no opportunity to address.
Considerations of finality and the availability of public resources weighed against reopening. Costs were reserved.
