In Commissioner of Taxation v AusNet Transmission Group Pty Limited [2015] FCAFC 60, the Full Court commented on an unusual approach taken by the trial judge to the proposed tender of primary experts’ reports.

The experts had written primary reports and, following a conclave, a joint report was also prepared. Concurrent evidence followed.

At [80] the court noted that the trial judge raised the proposition that the existence of the joint report and the later concurrent evidence, meant that the experts’ primary reports need not be admitted into evidence.

The appellate court (per Kenny J) commented adversely on that approach by the trial judge, saying at [84] – [85] that the trial judge erred in rejecting the tender of those reports. It denied the court the opportunity of reading and evaluating the reasons why the respective experts come to the diverse conclusions they did.

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