Australia, July 10 -- New South Wales Land and Environment Court issued text of the following judgement on June 11:

1. This judgment concerns an application by the Plaintiffs to extend the time for service of their expert evidence.

2. On 17 March 2025, there was a directions hearing in this matter at which the Court made, relevantly, the following orders (the 17 March Orders):

"1) Direct the plaintiffs to file and serve their expert evidence by 28 April 2025, no evidence to be relied on if not filed and served by that date without leave.

2) Direct the defendants to file and serve any expert evidence by 10 June 2025, no evidence to be relied on if not filed and served by that date without leave.

2A. List the matter in the Corporations Directions List on 16 June 2025 to confirm the hearing date.

...

5) Tentatively list the matter for hearing before Nixon J with a 5-7 day estimate on 22-25 and 29-31 July 2025.

...

8) The parties advise Black J by 4pm, 19 March 2025, whether any agreed variation of the tentative dates would better accommodate their expert availability."

3. On 19 May 2025, the Plaintiffs served an expert report of Mr Andrew Clifford of RSM Australia Pty Ltd (the Clifford Report). This report was served exactly three weeks after the date specified in the 17 March Orders, and more than two months before the trial is due to commence.

4. On 26 May 2025, the Plaintiffs took steps to relist the matter so as to make an application for leave to rely on the Clifford Report. This application was opposed by the Defendants.

Relevant Principles

5. There was a dispute between the parties as to the relevant principles.

6. The Defendants contended that the Plaintiffs' application must be determined by reference to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which relevantly provides as follows:

(1) Each party must serve experts' reports ... on each other active party:

(a) in accordance with any order of the Court; ...

...

(3) Except by leave of the Court, or by consent of the parties,

(a) an expert's report ... is not admissible unless it has been served in accordance with this rule;

...

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave; ...

7. The Defendants, in their written submissions, relied on Black J's summary of the principles relevant to the exercise of discretion pursuant to r 31.28(4) in Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 266 at [10]-[13]. In that decision, his Honour refused to grant leave for an expert report to be admitted into evidence at trial, which had not been served in accordance with r 31.28.

8. The Defendants also relied on the decision of Campbell J in Commonwealth Bank v Invest (No 7) [2017] NSWSC 440, in which his Honour adopted and applied the principles in Correa. This, too, was a decision to refuse leave to admit an expert report into evidence at trial.

9. Each of those cases approached the issue of the admissibility of the report into evidence by reference to the requirement for "exceptional circumstances".

*Rest of the document can be viewed at: (http://caselaw.nsw.gov.au/decision/19761d5756dcd897e38844f5)

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