D’Apice v Passas [2026] NSWSC 146 | Case summary

D’Apice v Passas [2026] NSWSC 146 | Case summary | Zoe

On Monday, 9 February 2026, the first day of this three-day hearing, the plaintiff objected to the reading of the whole of the affidavit of Mr Timothy William Daley sworn 19 May 2025, which the defendant sought to read.
To understand the relevance of Mr Daley’s affidavit to the proceedings as a whole, I will provide a very short synopsis of what the substantive proceedings are about.
This is principally a dispute about the validity of a will under which the defendant is the sole beneficiary. The deceased, Alessio Puopolo, relevantly made two wills, one on 10 February 2003 (the 2003 Will) and one on 21 June 2012 (the 2012 Will). Under the 2012 Will, the deceased gives the whole of his estate to the defendant. Under the 2003 Will, the assets of the deceased were split between the plaintiff and the defendant, both of whom are daughters of the deceased. I note that under both wills, the deceased’s wife was due to take most or all of the deceased’s estate, but she predeceased the deceased, which is why I have described the daughter’s entitlements under the wills. The 2012 Will was admitted to Probate in Common Form on 28 July 2023, with the defendant appointed executor, as named under the 2012 Will.
The plaintiff’s principal case is that there are suspicious circumstances surrounding the making of the 2012 Will, namely, suspicious circumstances which raise a doubt as to whether the deceased had knowledge of and approved of the 2012 Will. The plaintiff propounds the 2003 Will and seeks an order revoking the grant of probate made to the defendant by this Court in relation to the 2012 Will. In the alternative, if the 2012 Will is upheld, the plaintiff seeks a family provision order under the Succession Act 2006 (NSW).
On 3 December 2014, the deceased signed a statutory declaration (the 2014 Statutory Declaration), the stated purpose of which was to “make known [the deceased’s] reasons for writing [his] last will and testament dated 21 June 2012”. There was no objection to this statutory declaration being received into evidence, and it has already been admitted as part of the broader documentary tender in this case notwithstanding the objection made to Mr Daley’s affidavit. Mr Daley himself is a solicitor and is the principal of the law firm which was engaged by the deceased in 2014 to prepare the 2014 Statutory Declaration.
Briefly summarising what is contained in his affidavit, Mr Daley deposes to what he recalls of working on the file of the deceased in 2014. He gives specific evidence in relation to the preparation of two drafts of the 2014 Statutory Declaration which preceded the final version, copies of which are annexed to his affidavit. Those copies of the drafts of the 2014 Statutory Declaration have not yet been received into evidence, and their tender will rise and fall with the affidavit as a whole. I note that Mr Daley says in his affidavit that he does not recall the specific occasions he met with the deceased, but does recall the matter on which he worked, which culminated in the 2014 Statutory Declaration. In his affidavit, Mr Daley also says that the 2014 Statutory Declaration was prepared in accordance with his usual practices (the details of which are described in the affidavit but which are unnecessary to set out here).
In the course of the exchange of lists of objections and responses to those objections in advance of the hearing, the defendant, by her counsel, notified the plaintiff that Mr Daley is “not available for cross-examination”. It is because of the unavailability of Mr Daley for cross-examination that the plaintiff objects to his affidavit being read.
When the defendant sought to read Mr Daley’s affidavit, the plaintiff, through her counsel, then made the objection that has resulted in these reasons for judgment. The parties then made further oral submissions, in addition to the objections and responses recorded in writing on the plaintiff’s list of objections document provided to my Chambers before the hearing, on the question of whether the affidavit (and the two annexures whose tender has been objected to) of Mr Daley should be admitted into evidence.
I then reserved my decision on this question, indicating to the parties I would reflect on the question overnight and have for them my ruling the next morning, being this morning.
My decision is to admit into evidence the affidavit of Mr Daley. This admission into evidence is, of course, subject to weight, given the plaintiff did not have the opportunity to cross-examine. The plaintiff will have the opportunity to address the Court on this issue in closing submissions. That affidavit will be marked Exhibit 15.
I will now state my reasons for that ruling. However, before doing so, I observe that whilst the parties made their submissions on this evidentiary question orally, I did not have the benefit of the transcript after court yesterday to assist with the early preparation of this judgment. The transcript was, however, available to me by this morning for my final preparation of this decision. Accordingly, I will not separately summarise the parties’ submissions in their totality but address the main thrust of their submissions in the course of these reasons for judgment.

To consider this issue it is necessary to set out the chronology of events in relation to Mr Daley’s affidavit. Based on the documents in the defendant’s supplementary Court Book which were admitted into evidence, the following chronology can be discerned.
Mr Daley’s affidavit was sworn on 19 May 2025. The coversheet to his affidavit indicates it was e-filed on 23 May 2025 at 4:33pm. From the bar table, and upon my inquiry as to whether the plaintiff had received a copy of the affidavit “soon after” filing, and that she had “had the opportunity to deal with it”, counsel for the plaintiff responded, “Yes” (TR P41 L24-28).
On 28 January 2026 at 11:55am, the plaintiff’s solicitor sent to the defendant’s solicitors an email in which he (the plaintiff’s solicitor) informed the defendant’s solicitors that the plaintiff “requires all deponents to each affidavit filed for and on behalf of the defendant, including the defendant, to be available for cross examination”. This notice, presumably provided to comply with requirement of r 35.2(1) of the UCPR that a party may, by written notice, require the attendance for cross-examination of a person who made an affidavit which is to be relied on by another party, was provided such that 7 clear working days or 11 clear calendar days were left before the hearing (these figures were reached by discounting the first day of hearing itself and the day on which the notice was given).
On the same day, at 6:35pm, Mr Zhang, one of the solicitors of the firm acting for the defendant, emailed Mr Daley, copying-in the email address of Mr Daley’s personal assistant, informing Mr Daley that he had been required for cross-examination. In that email, the defendant’s solicitors requested Mr Daley make himself available for the duration of the hearing.
The next morning, 29 January 2026 at 10:14am, Mr Daley’s personal assistant replied to the email sent by the defendant’s solicitors saying, “Mr Daley is currently overseas and will not be returning until 18 February 2026”.
The next morning, on 30 January 2026 at 10:43am, the defendant’s solicitors sent by email to Mr Daley, again copying in his personal assistant, a subpoena to attend to give evidence, which had been filed electronically shortly before the email was sent. In the email, the defendant’s solicitors also said the following: “We anticipate compliance can be easily facilitated by AVL. We appreciate you are overseas but we have only just been notified of your requirement for cross examination. Please contact our office to make appropriate arrangements for your attendance”.
On 3 February 2026 at 5:05pm, two working days and four calendar days after the subpoena was served by email, the solicitors for the defendant sent a further email to Mr Daley following up with him, again requesting advice from him as to whether he was available to appear via AVL. This email is the last of the correspondence between the defendant’s solicitors and Mr Daley in evidence.
Counsel for the defendant, from the bar table, informed the Court as to further contact between her instructing solicitors and the firm of which Mr Daley is principal. However, for the benefit of the plaintiff, I have made my decision without referring to that further contact of which I was informed.
I will now turn to dealing with whether r 35.2(3) of the UCPR means Mr Daley’s affidavit cannot be used.
Ignoring for the moment the Court’s power to “otherwise order”, the plaintiff can only rely on r 35.2(3) to prevent Mr Daley’s affidavit from being used if she had given notice to the defendant that Mr Daley was required for cross-examination “a reasonable time before the time at which [Mr Daley] [was] required to attend for cross-examination”, ie, time of the hearing, under rr 35.2(1) and (2).
As I have already said, in this case, the plaintiff notified the defendant that all deponents of affidavits made in support of the defendant’s case would be required for cross-examination on 28 January 2026. In relation to Mr Daley, the plaintiff has been in possession of his affidavit and its annexures for some 8 months. The matter was set down for final hearing by the Registrar in Equity on 29 July 2025, meaning the plaintiff had approximately 6 months to contemplate whether Mr Daley would be required for cross-examination.
No explanation was given by the plaintiff as to why the plaintiff notified the defendant Mr Daley was required for cross-examination as late as she did. The plaintiff also had to have been aware Mr Daley is a practising solicitor, that fact being deposed to in the first paragraph of the affidavit, such that there was a reasonable risk of a potential clash between being in this case and Mr Daley’s professional obligations either to clients or potentially even to this Court (noting Mr Daley says in his affidavit he “frequently” practises in estate litigation).
Given that the defendant was only notified by the plaintiff of the need to make Mr Daley available for cross-examination a relatively short time before the hearing, in circumstances where the hearing date and Mr Daley’s affidavit have been known for many months, I consider that written notice under r 35.2(1) and (2) of the UCPR was not provided “a reasonable time” before the hearing (being the time at which Mr Daley was required for cross-examination). Accordingly, I reject any argument that r 35.2(3) of the UCPR could be used to prevent the defendant from relying on Mr Daley’s affidavit.
The plaintiff repeatedly made the submission that given the availability of audio-visual link facilities in the contemporary courtroom, Mr Daley could and should have made himself available for cross-examination notwithstanding that he was overseas. While it might be accepted that generally speaking, AVL facilities mean the mere fact a witness is unable to physically attend court is not enough to say a witness in unavailable to cross-examined, I do not consider that relevant under this issue where there is a more fundamental issue as to the defendant being given sufficient notice to make Mr Daley available for cross-examination in the first place.

While the plaintiff did not expressly or clearly rely on the hearsay rule, because the defendant made submissions as to the steps taken to make Mr Daley available to give evidence, invoking language of the Evidence Act 1995 (NSW) (Evidence Act), and elsewhere invoked s 64 of the Evidence Act (in her written response to the plaintiff’s objections provided before the hearing), I will address for completeness why I consider the Evidence Act does not independently prevent Mr Daley’s affidavit from being read into evidence.
In the absence of Mr Daley getting into the witness box and adopting his affidavit evidence as his evidence, his actual affidavit from May 2025 is in fact caught by the hearsay rule in s 59 of the Evidence Act. What is contained in the affidavit is evidence of previous representations made by Mr Daley, which are being used by the defendants to prove the facts asserted in the affidavit. Accordingly, on its face, the whole of Mr Daley’s affidavit is inadmissible in light of him not giving evidence in the box, given the plaintiff is taking the point.
The question then is whether an exception to the hearsay rule can be invoked. The only relevant exceptions are that contained in s 63 (when the maker of a previous representation is not available to give evidence) and s 64 (when the maker of a previous representation is available to give evidence) of the Evidence Act.
This then turns on the question of whether Mr Daley is available to give evidence about the facts he asserts in his affidavit. Whether someone is available or not available to give evidence about a fact is defined in cl 4 of Pt 2 in the Dictionary of the Evidence Act. Relevantly, cl 4(1)(f)-(g) provides that a person is taken to be not available to give evidence about a fact if all reasonable steps have been taken by the party seeking to prove a person is unavailable to either find the person or secure his or her attendance, or to compel the person to give evidence, in each case the steps being taken without success.
Have the defendants taken all reasonable steps to find Mr Daley or secure his attendance, or to compel his attendance?
Whether “all reasonable steps” have been taken in relation to a witness depends on the case at hand, though Kunc J in Huang v Wei [2022] NSWSC 222 at [41] outlines a list of some factors which may be of relevance in answering the question at hand.
Here, I again note that the defendant only had 7 clear working days and 11 clear calendar days in which to find or secure, or compel Mr Daley’s attendance. In light of the shadow of the notice requirements in r 35.2 of the UCPR, I do not consider it relevant to determine whether steps ought to have been taken prior to 28 January 2026.
The chronology reveals that the defendant’s solicitors did act with some haste in communicating the need for Mr Daley’s attendance to him by email, emailing on the very day they were notified of the need to make him available for cross-examination. A subpoena was also prepared and served promptly, after receipt of a response on Mr Daley’s behalf as to him being overseas. The emails from the defendant’s solicitors were not only sent to Mr Daley but also to his personal assistant, such that it could not be said the defendants simply rested on contacting Mr Daley directly (noting Mr Daley’s personal assistant did in fact respond to the email from the defendant’s solicitors).
Mr Daley is an officer of the court. Though the plaintiff did not make any such explicit suggestion, I expressly record that I am not prepared to find, and do not find, that Mr Daley is seeking to avoid giving evidence in these proceedings. The fact that only his personal assistant has responded to the defendant’s communications (at least, those of which that are in evidence), in circumstances where Mr Daley would no doubt be aware of the importance of complying with a subpoena to attend court, would strongly suggest to me that Mr Daley is not contactable. That circumstance is readily explainable given Mr Daley’s personal assistant indicated he is overseas. While there is no evidence as to where Mr Daley actually is, it is not inconceivable that he is in a location in which he is not easily contactable.
In their emails to Mr Daley, the defendant’s solicitors also expressly referred to the possibility of evidence being taken by AVL, such that one cannot even criticise the defendant’s legal representatives for not putting the possibility of this alternative means of giving evidence to Mr Daley.
In the course of oral submissions, I specifically put to counsel for the plaintiff:

I therefore consider that Mr Daley is not available to give evidence about the facts asserted in his affidavit. Accordingly, s 63 of the Evidence Act applies to Mr Daley’s evidence, by reason of s 63(1). Section 63(2)(b) of that Act provides that the hearsay rule does not apply to a document so far as it contains the relevant prior representations. As Mr Daley is unavailable to give evidence within the meaning of the Evidence Act, s 63(2)(b) permits the defendant to read into evidence Mr Daley’s affidavit.
I acknowledge the terms of s 67 of the Evidence Act, which require that reliance on s 63(2) is, generally speaking, only possible if the party seeking to adduce the evidence in question has given reasonable notice to other parties in a proceeding in the prescribed form. Because I am dealing with the Evidence Act objection for completeness and the plaintiff did not ever put their objection in terms of the Evidence Act, I am not going to enforce a requirement in relation to which no objection has now been taken. Even then, s 67(4) permits the Court to direct that s 63(2) may apply notwithstanding a party’s failure to give notice. That provision can only be relied upon on the application of a party. Of course, the defendant has made no such application but, to reiterate, no point has been or ever was taken by the plaintiff in this regard, and so no criticism could be made of the defendant in this specific regard. Had the plaintiff taken the point and the defendant made an application under s 67(4), I would have directed that s 63(2) apply to Mr Daley’s evidence notwithstanding the defendant’s failure to give notice under s 67, taking into account the considerations traversed in more detail earlier, namely:
the lateness of the notice given to the defendant for the requirement for Mr Daley to attend cross-examination; and
the efforts gone to by the defendant at relatively short notice to secure or compel Mr Daley’s attendance, which were fruitless but not through any apparent fault of the defendant’s legal representatives.

On the morning of the day after I delivered my reasons orally in relation to the admission of Mr Daley’s affidavit (the third and final day of this hearing), counsel for the defendant handed up a letter dated 6 February 2026, addressed to the solicitor for the plaintiff and signed by Mr Zhang, mentioned earlier in these reasons for judgment. The letter is headed (capitalisation in original), “SECTION 67 NOTICE – TIMOTHY DALEY”. I admitted this document and marked it as Exhibit 16.
As will be apparent from the terms of what will be [40] of the version of the revised version of this judgment being published online, when my reasons for judgment were first delivered, I suggested that the defendant had not given notice under s 67 of the Evidence Act. That is because I was not given the document which became Exhibit 16 prior to the delivery of this judgment. In saying this, I do not intend to be critical of the defendant or her counsel. Given the circumstances in which the debate surrounding Mr Daley’s affidavit took place, namely that it was unclear whether the Evidence Act was even sought to be relied upon by the plaintiff to exclude the affidavit, it is understandable why the defendant did not tender the s 67 notice she now has. As I observed to the parties, there had been “a lot happening at the end of the day” (TR P186 L31-32).
In the end, the s 67 notice was tendered by the defendant “for completeness”, with the defendant also acknowledging that in any event the notice had been served “very late” and was only served “as a formality” (TR P185 L47-49, P186 L14-16). I have decided to include this addendum to ensure these reasons contain an ultimately correct view of history, namely that a formal written notice of the intent to adduce Mr Daley’s affidavit had in fact been given by the defendant.
There may have been questions as to whether the requirements for a notice under s 67 of the Evidence Act had been fully complied with in the letter marked as Exhibit 16. Section 67(1) of the Evidence Act required the defendant to give the plaintiff “reasonable notice” of its intention to put into evidence Mr Daley’s affidavit. Given how soon before the hearing the notice was given, there may have been an argument to be had about whether the time of the notice was “reasonable”. Additionally, s 67(3)(a) of the Evidence Act requires a notice under s 67 to state the particular provisions of Div 2 of Pt 3.2 intended to be relied upon. If the defendant had ultimately relied upon s 63 rather than s 64 to support the admission into evidence of Mr Daley’s affidavit, clearly, no notice of the defendant’s intent to rely on s 63 was given in the letter marked as Exhibit 16. Furthermore, s 67(2) requires notices under s 67(1) “to be given in accordance with any regulations or rules of court made for the purposes of this section.” Clause 4 of the Evidence Regulation 2020 (NSW) (Evidence Regulation) makes provision for what a notice under s 67(1) of the Evidence Act must contain. The letter marked as Exhibit 16 arguably does not comply with some of the form requirements imposed by cl 4 of the Evidence Regulation. For example, the letter does not provide Mr Daley’s address, as the person whose representations are sought to be tendered, which was required by cl 4(2)(c)(iii). The letter, or at least the copy in evidence, also did not have attached to it Mr Daley’s affidavit, contrary to cl 4(5)(a) which required the notice to have attached to it a copy of the document containing the representations referred to in the notice.
I do not point to these potential shortcomings to be critical of the defendant or her solicitors in any way. The notice was produced quickly, in the midst of the preparation of a three-day hearing, noting the notice was ultimately served on the last working day prior to the first day of this hearing. I only make these observations to say that, if the point had been taken and argued by the plaintiff, the defendant’s notice may not necessarily have saved me from the need to consider whether a direction ought to be given under s 67(4) of the Evidence Act, as the plaintiff may have had a case that no notice was given under s 67(1). But it should be obvious that the ultimate outcome of this evidentiary dispute would not have changed. Even without knowledge of the letter marked as Exhibit 16 (which I observe is dated after the date on which counsel for the defendant sent to my Chambers by email the document containing her responses to the plaintiff’s list of objections to, amongst others, Mr Daley’s affidavit, a document which I referred to in my reasons for judgment above), I indicated that, if required to do so, I would have been prepared to make the relevant direction under s 67(4) for the reasons I stated earlier.
In the end though, this is all academic. To reiterate once again, the plaintiff never based her objection in terms of the Evidence Act.

D’Apice v Passas

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT (Ex-tempore, revised)

The objection under the Uniform Civil Procedure Rules

Considering the objection under the Evidence Act

Conclusion

Addendum

Parties

Legislation Cited (2)

Cited By (2)