Case: Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd (Federal Court of Australia, 22 May 1998, unreported)
Outcome: applied
What this necessarily truncated description makes clear is that the accuracy of the Principal Announcement and the Blackburn Adverse Comments were, and at this stage of the proceedings remain, some of the central issues in the proceedings. It is to these issues that the four new expert reports are directed. However, at no time did any of the defendants inform the Court or ASIC that it intended or even might intend to file and serve these expert reports. Of course, there was no obligation on the directors to file any evidence. MPG, too, could have stood mute, not gone into evidence and simply relied upon whatever positive case the directors ran. But if MPG intended to go into evidence, it was subject to the principles summarised in [11(6)] above. 20 What then did the defendants do? The affidavits exhibiting the reports state that the directors retained Mr Rutter, a geophysicist, on 4 June 2007, Mr Stoker, also a geologist, on 29 November 2007, Mr Lawrence, also a geologist, on 5 February 2008 and Mr Whitehead, on 9 April 2008. Moreover, the affidavit of Mr Whitehead disclosed that a preliminary written response was provided on 24 April 2008, some two weeks before the date for MPG to file and serve its material. The affidavits and reports were filed and served on behalf of the directors under cover of a letter seeking to maintain privilege. The explanation provided by the defendants' counsel for the late filing was that: ... we have flagged to [ASIC] expert reports attacking their expert position when they are not entitled to [such notice]. We've put ourselves at some disadvantage in terms of preparing their expert for them. He at least has a notion of what's coming, without a limitation on it. They are not entitled to that advantage. We were entitled to cross-examine their experts without them knowing what our experts were saying. That was the fact. We've given that away. In the interests of trying to resolve this matter, [ASIC] could have a quick look at it and decide whether they want [to proceed]. 21 That submission was incomplete and not wholly accurate. First, as I have already noted, at the directions hearing on 12 June 2008, what ASIC wanted to know was not about the directors' case, but whether the affidavits and reports from the four experts were intended to form part of MPG's own case at trial. The response from MPG's Senior Counsel was that they were: see [5]. That fact was further reiterated by counsel for the defendants, who not only conceded (properly) that the affidavits and reports were late, but asserted that they were provided "in the interests of trying to resolve this matter". The subsequent submission on behalf of the defendants that MPG only intended to rely upon the affidavits if they were ultimately tendered by the directors is rejected. It ignores, first, that the sole reason why the matter came before me for directions on 12 June was to ascertain whether MPG intended to rely on the reports as part of its own case and, secondly, the submissions made by Senior Counsel for MPG in response to those enquiries.