INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 7)

This ruling arose in concurrent Federal Court proceedings about the degradation and failure of a coating called I228 used on an LNG project near Darwin. INPEX was the project operator. JKC had the EPC contract role. AkzoNobel-related entities, referred to by the Court as ANIP, supplied the coating. Both INPEX and JKC had brought claims against ANIP alleging misleading or deceptive conduct in relation to I228.

The application decided in this judgment was not the final liability decision in that broader dispute. It was an interlocutory application by ANIP to re-open its case so it could tender extracts from two expert reports prepared for separate insurance proceedings in the Supreme Court of Western Australia. Those insurance proceedings were brought by INPEX against insurers, and neither ANIP nor JKC was a party to them.

The experts were Mr Peter Moore and Mr Bryan McCormick. They were not strangers to the Federal Court case. INPEX had already called them as expert witnesses in the Federal Court proceedings, and they had given evidence on the degradation and failure of I228. They travelled from the United Kingdom, provided written reports and took part in a six-day joint evidence session. But the Court made an important distinction: they were not called in the Federal Court case on any issue relating to insulation.

The new report extracts ANIP wanted to use did not concern I228 itself. They concerned the project's flexible elastomeric foam insulation system, or FEF, including the mastic and the Arma-Chek R covering system. ANIP wanted to use those extracts against both INPEX and JKC and asked the Court to accept the representations in the extracts and make findings accordingly, even though ANIP did not intend to call the authors for cross-examination.

The available judgment text shows that FEF was not referred to by INPEX or JKC in their statements of claim in the Federal Court proceedings. However, ANIP later amended its pleadings. In January 2024 it formally introduced what the parties called an insulation apportionment defence in the INPEX proceeding, based on the use of FEF and mineral wool insulation systems, and alleged that JKC was a concurrent wrongdoer.

In broad terms, ANIP contended that the design of the FEF insulation system was defective and not fit for purpose, and that JKC had therefore breached warranties and contractual obligations under the EPC contract. In the INPEX proceeding, ANIP relied on proportionate liability provisions including s 87CD of the Competition and Consumer Act 2010 (Cth). It also introduced a contribution claim. In the JKC proceeding, ANIP pleaded related themes under the heading of contributory negligence and alleged breaches of JKC's fitness for purpose warranties and obligations under the EPC contract.

The Court paid close attention to the scope of those pleadings. It recorded that the pleaded act, omission or defect in the design and use of the FEF system was relevantly limited to two points: that the mastic was prone to premature degradation and that the Arma-Chek R covering system was not watertight. The Court also noted that in closing submissions ANIP sought to rely on additional matters, including allegations about chloride-containing FEF and workmanship issues.

That mattered because ANIP did not open on its insulation case and did not adduce lay or expert evidence directed to it. In that setting, the pleadings were especially important because they were the main way JKC was informed of the case it had to meet. For a business reader, this is a reminder that pleadings are not just formal paperwork. They define the dispute and shape what evidence is needed.

The reports ANIP wanted to use were filed in the insurance proceedings on 28 February 2025. They had not yet been tendered or otherwise adduced as evidence in those proceedings. ANIP sought production of them in the Federal Court case through a notice to produce issued to INPEX on 11 April 2025. INPEX sought dispensation from compliance. The Court later required production of the expert reports, and they were provided to ANIP on 20 May 2025.

But the Court had already made a point that became central to this later application: production did not mean admissibility. The judge said that expressly because ANIP had at times conflated production, tender and admissibility, and had assumed that if documents were produced they would thereby be admitted into evidence. The Court rejected that assumption.

This distinction is highly practical. In commercial litigation, businesses often spend significant time and money obtaining documents through discovery, subpoena or notice to produce. But access to a document is only one step. A party still has to show the document can be tendered and used for the purpose it wants. That may involve hearsay rules, opinion evidence rules, admissions principles and discretionary exclusion for unfairness or prejudice.

The Court also emphasised the size and technical nature of the proposed material. The Moore extract was 88 pages and the McCormick extract was 18 pages. The Court said the material was substantive and related to highly technical scientific areas of expertise. This was not a minor correction or a short factual update. It was a substantial body of technical opinion evidence from another proceeding.

The conduct of the trial also mattered. The Court recorded that ANIP had presented all evidence on which it intended to rely by August 2024, and that all evidence in the trial had concluded by November 2024. ANIP had been aware of expert evidence deadlines when it foreshadowed its insulation amendments in late 2023. It appears ANIP sought to engage an insulation expert, Mr Lumley, and a report was prepared in July 2024. But ANIP later withdrew reliance on that report. The Court also recorded that ANIP no longer intended to call a number of lay witnesses and instead relied on only two lay witnesses and one expert, Professor George, whose evidence related to I228.

That procedural history meant the Court was not looking at an unavoidable late development in isolation. It was looking at a late attempt to introduce substantial technical material after ANIP had already made forensic choices about what evidence to call and what evidence not to call.

The immediate question was whether ANIP should be allowed to re-open its case to tender extracts from the two insurance reports. That question had two linked parts. First, was it in the interests of justice to re-open the case this late, after evidence had closed and liability submissions had been completed? Second, if the case were re-opened, were the extracts likely to be admissible?

The catchwords show the evidentiary issues the Court had to consider. They included exceptions to the hearsay rule, especially s 64(3) of the Evidence Act 1995 (Cth), admissions and common purpose under s 87, the opinion rule in s 76 and the expert opinion exception in s 79, and the Court's powers under ss 135 and 136 to exclude or limit evidence where prejudice or unfairness is a concern.

ANIP argued that leave to tender the extracts was not required because it said it had not formally closed its case on or before 12 May 2025. Alternatively, if leave was required, it should be granted. ANIP also argued that the extracts were admissible under a hearsay exception, that the opinion rule did not prevent the relevant opinions being used because the experts were qualified, and that some assumed facts in the reports could be used as admissions against INPEX.

INPEX and JKC opposed the application. On the available text, the Court had to assess those arguments in the real procedural setting of the case: the reports were created for separate proceedings, they post-dated the close of evidence, they concerned a different topic from the one on which the experts had been called in the Federal Court case, and ANIP did not intend to call the authors for cross-examination on the new topic.

For business readers, the legislation point is worth noting. The Evidence Act 1995 (Cth) was central because ANIP was trying to use out-of-court expert material for the truth of what it said. That naturally raised hearsay and opinion issues. The Court also had to consider whether any probative value was outweighed by prejudice or unfairness. In practical terms, the law was asking whether this material could fairly and properly be used in this proceeding, at this stage, in this way.

The order was clear. The Court dismissed ANIP's interlocutory application filed on 1 July 2025 and reserved costs. That means ANIP was not permitted to re-open its case for the purpose of tendering the report extracts.

The available judgment text strongly indicates the reasons that drove that result, even though the text available here cuts off before the full reasoning is reproduced. The Court repeatedly highlighted the late timing, the fact that the reports were prepared for separate insurance proceedings, the different subject matter of the extracts, and the absence of any proposal to call the experts for cross-examination in the Federal Court case on the insulation topic.

The Court also recorded that ANIP bore the onus on its insulation apportionment claim but did not lead witness evidence to support the proposition that insulation issues were a material cause of the I228 rectification works. It led no lay or expert evidence that insulation issues required the removal and replacement of the insulation that INPEX had removed or was removing as part of the I228 rectification works. The Court further noted that ANIP had foreshadowed and pleaded insulation-based arguments well before trial, was aware of expert evidence deadlines, appears to have engaged an insulation expert, and ultimately withdrew reliance on that expert's report.

Read together, those points show the Court was treating the application as more than a neutral request to add fresh material. It was a late attempt to introduce substantial technical evidence after the ordinary evidentiary process had run its course and after ANIP had already made forensic choices about how to run its case.

Because the available text is truncated, this page should not overstate the exact doctrinal path the Court took on each Evidence Act argument. But the practical result is clear enough. The Court refused to re-open the case and did not allow ANIP to use the extracts in the way it proposed.

Most businesses will never be involved in litigation of this scale, but the procedural lesson is widely transferable. If your dispute turns on a technical issue, such as product failure, design defects, remediation scope, causation or allocation of responsibility between multiple parties, you need to separate four things clearly: what you have pleaded, what evidence you have, what documents you can obtain, and what material the court will actually admit and rely on.

This case shows the risk of blurring those categories. ANIP had pleaded insulation-based arguments, but the Court recorded that it did not lead supporting insulation evidence at trial. Later, after obtaining reports from another proceeding, it tried to use those reports to fill the gap. The Court refused that course. For a business owner, the message is that courts expect discipline, fairness and finality. They may be reluctant to let a party change the evidentiary shape of the case after evidence has closed and submissions are done.

There is also a governance lesson for businesses managing multiple related disputes at once. Parallel proceedings can generate useful reports, witness statements and technical analyses. But those materials are not automatically portable. Different proceedings may involve different parties, different pleaded issues, different assumptions, different solicitors and different evidentiary purposes. A report prepared for one case may not answer the right question in another, and trying to use it late can create hearsay, opinion and fairness problems all at once.

Another practical point is witness planning. If a technical issue matters to liability, apportionment, contribution or contributory negligence, ask early who will prove it. Is it a lay witness with project knowledge, an expert with the right discipline, or both? If an expert report is withdrawn or an expert is not called, reassess whether the pleaded case still has enough evidentiary support. Do not assume the gap can be fixed later with documents obtained from elsewhere.

The judgment is dated 11 May 2026 and was delivered by Banks-Smith J in the Federal Court of Australia. The orders dismiss the interlocutory application filed on 1 July 2025 and reserve costs.

The available text also records several key procedural dates. The insurance reports containing the proposed extracts were filed on 28 February 2025. ANIP issued its notice to produce on 11 April 2025. The Court indicated on 12 May 2025 that some documents were to be produced but made clear that admissibility was a separate issue. Reasons on the notice to produce dispute were published on 16 May 2025, and the reports were provided to ANIP on 20 May 2025.

The public status of this page remains review rather than final. That is because the available judgment text is truncated before the full reasoning is reproduced. The orders and much of the factual and procedural background are clear, but a complete reading of the full judgment would still be useful to confirm the detailed reasoning on the Evidence Act issues and the discretionary refusal to re-open.

This page is based on the Federal Court judgment in INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 7) [2026] FCA 571. The available text includes the orders, catchwords and substantial factual and procedural background.

However, the available text cuts off before the full reasons are reproduced. For that reason, this page focuses on what can be stated confidently from the available judgment text and avoids overstating the Court's detailed reasoning where the full discussion is not visible.