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[2026] NSWCA 170
appellant. Leave to appeal granted; appeal allowed; the appellants’ adjournment application remitted to the primary judge for reconsideration having regard to the Court of Appeal’s reasons; costs of the leave...
The appeal concerned a trial that had to pause after the judge raised concerns about how a witness obtained computer records and about what that could mean for the appellants’ lawyers. The lawyers withdrew, saying they could not continue. The Court of Appeal said s 138 allows a judge to weigh whether improperly or illegally obtained evidence should nevertheless be admitted, and that lawyers are not implicated just because they ask the judge to admit it. Given the misunderstanding and the limited time offered to replace the legal team in a complex trial, the refusal of a longer adjournment could not stand. The Court did not itself set a new adjournment period. It sent the application back to the trial judge to reconsider.
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2,269 words · generated 05/10/2026
Hu v Green Estate Australia Pty Ltd [2026] NSWCA 170 is an urgent appeal about the management of a part-heard civil trial. The immediate question was not whether the disputed evidence should ultimately be admitted, nor whether Mr Lu’s access to a computer system was lawful. The question was whether the appellants should have been given a longer adjournment after their trial counsel withdrew, so that new legal representatives could prepare.
7 cited instruments linked from this judgment.
The underlying litigation concerned transfers of funds from companies in Hong Kong and Singapore to two Hong Kong companies in the Boill group, and then to Green Estate. Mr Hu was a Green Estate director. The respondents sought recovery of more than $19 million, excluding interest, and orders setting aside a Share Holding Agreement concerning shares in land-holding companies said to be worth between $70 million and $100 million ([3]).
The trial began in March 2026 and resumed in August after an earlier adjournment. On the eighth day of the resumed hearing, an objection was taken to screenshots attached to Mr Lu’s affidavit. Mr Lu said he had accessed Boill’s computer system and extracted the screenshots. His employment or consultancy status with Boill-related entities was disputed, and the Court of Appeal said it was unnecessary to resolve that uncertainty ([6], [22]).
The trial judge raised concerns about whether access to the system was authorised, whether the conduct might constitute an ongoing criminal offence, and whether the appellants’ lawyers might have obligations arising from the circumstances in which the evidence was obtained. The respondents’ counsel clarified that the objection was directed to the evidence, and that no allegation of illegality or impropriety was made against the appellants’ lawyers ([7], [10], [34]-[35]).
The next day, counsel for the appellants stated that, after taking advice, they considered themselves compelled by the barristers’ rules to return their briefs. The instructing solicitors also indicated that they wished to cease acting. Counsel sought an adjournment long enough for new representatives to be retained ([12]-[13]). The primary judge refused an adjournment for an unspecified future date, while indicating that a short adjournment of a few days might be available ([14]-[18]).
The Court of Appeal granted leave, allowed the appeal, and remitted the adjournment application to the primary judge for reconsideration. It did not itself set a new trial date or determine how long the adjournment should be ([46]-[49]).
The Court began with the usual restraint applied to appeals about procedural discretion. A refusal of an adjournment is a practice and procedure decision, and leave to appeal is rarely granted in that setting. The applicable appellate approach was the House v R test: intervention may be warranted for a material error in a finding or principle, or where the result is unreasonable or plainly unjust ([23]-[25]).
The first major concern was the apparent misunderstanding of s 138 of the Evidence Act 1995 (NSW). Section 138 does not automatically exclude evidence obtained improperly or illegally. It says that such evidence is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. The provision therefore requires a discretionary balance, taking account of matters including probative value, importance, seriousness of the impropriety, whether it was deliberate or reckless, and the difficulty of obtaining the evidence otherwise ([28]-[29]).
The Court drew a consequential distinction. A lawyer may seek to persuade the court to admit material under s 138 without thereby becoming tainted by the way it was obtained. The Court expressly put aside the different question of a lawyer’s personal involvement in the conduct that caused the evidence to be obtained improperly or illegally ([30]-[32]). In this case, the respondents had confirmed that they were not alleging that the appellants’ legal representatives had been involved in improper or illegal conduct, and would not seek to cross-examine witnesses to establish such involvement ([34]-[35]).
The Court considered that the primary judge’s references to lawyers’ “knowing involvement” in an “ongoing criminal offence” could have reflected a mistaken view that seeking to tender previously obtained material would itself make the lawyers participants in a continuing offence. The Court said that proposition was incorrect ([36]). It also stated that, where the respondents had made no allegation against the appellants’ legal team, there was no occasion to investigate or comment on that supposed allegation ([37]-[38]).
The second major reason concerned the conflict faced by counsel. The primary judge had suggested that counsel could avoid any conflict by not reading the disputed parts of Mr Lu’s affidavit. The Court considered that reasoning flawed. Section 138 contemplated that the evidence might be admitted; and a direction or choice not to tender evidence could itself reflect the conflict between a lawyer’s professional concerns and the client’s interests ([40]-[43]). The Court did not decide that counsel were legally required to withdraw. Instead, it found that the reasoning used to refuse the longer adjournment did not adequately account for the circumstances that had led counsel to withdraw.
The third reason was practical and procedural. Section 56 of the Civil Procedure Act 2005 (NSW) required attention to the overriding purpose, but that did not remove the appellants’ entitlement to procedural fairness and a reasonable opportunity to present their case ([44]). The trial involved complex issues, six volumes of court materials, at least 26 affidavits, and cross-examinations that had extended over several days. The Court considered three business days inadequate for replacement lawyers to absorb the record and take over the case ([44]-[45]).
Taken together, these matters led the Court to conclude that the discretion had miscarried. The appropriate course was remittal, because the primary judge had greater familiarity with the case and could consider the adjournment in light of the Court of Appeal’s clarifications and the judge’s own availability ([45]-[47]).
The judgment does not purport to create a new statutory test for the admission of improperly obtained evidence. It explains the operation of the existing s 138 test in the context of the adjournment dispute. Before the appeal, the trial judge had made comments that appeared to associate the attempted tender of Mr Lu’s evidence with potential criminal involvement by the appellants’ legal representatives. The Court of Appeal clarified that s 138 permits admission if the statutory balance favours admission, even where the evidence was obtained improperly or illegally ([28]-[31]).
The judgment also states a limit to that clarification: the Court put aside cases in which a legal practitioner is personally involved in the conduct that led to the evidence being obtained improperly or illegally ([31]). It did not decide whether Mr Lu’s access was authorised, whether the evidence was improperly or illegally obtained, or whether the evidence should be admitted. Those matters were not necessary to decide the appeal ([6], [42]).
As to adjournments, the judgment applies established principles rather than announcing a general rule that counsel’s withdrawal requires a lengthy adjournment. It recognises the strong reluctance to grant leave over procedural decisions, particularly where delay and cost may follow ([23]-[25]). Its result depended on the unusual chain of events, the apparent misunderstanding about s 138, the absence of any allegation against the appellants’ lawyers, and the practical inadequacy of the time offered for new representatives to prepare ([25], [39]-[45]).
The effect of the orders was limited. The Court of Appeal did not grant a month-long adjournment or make a final ruling on the evidence. It directed the primary judge to reconsider the application having regard to its reasons ([46]-[49]). Accordingly, the judgment provides guidance about relevant considerations, but leaves the ultimate adjournment decision to the trial judge.
At [29], the Court explained that even if evidence is found to have been obtained improperly or illegally, the judge retains a discretion to admit it. In plain English, the allegation about how evidence was obtained does not, by itself, end the admissibility question. The court must apply the balance in s 138.
At [31], the Court said a legal practitioner is not tainted merely for seeking to lead such evidence by persuading the judge to admit it under s 138. This separates the act of asking for admission from personal participation in the original conduct. The Court expressly noted that personal involvement would raise different considerations.
At [34]-[35], the Court recorded that the respondents did not allege that any of the appellants’ barristers or solicitors had acted improperly or illegally, and did not intend to pursue such an allegation. In practical terms, the concern raised in the trial had not been part of the opposing parties’ case.
At [36], the Court rejected the proposition that tendering evidence previously obtained unlawfully would make a lawyer involved in an ongoing criminal offence. That statement addressed the particular proposition the Court understood may have contributed to counsel’s perception of conflict. It should be read in the context of the Court’s express qualification about personal involvement at [31].
At [44], the Court said the appellants were entitled to procedural fairness and a reasonable opportunity to present their case. It then assessed the record: complex issues, six volumes of materials, 26 affidavits, and extensive cross-examination. The point was not that a particular number of days is always required, but that the actual preparation burden mattered.
At [45], the Court concluded that the primary judge’s discretion miscarried. That conclusion explains why the appeal succeeded; the Court then remitted the application rather than deciding the appropriate adjournment period itself ([46]-[47]).
The judgment is most directly relevant where a trial judge raises concerns about the method by which evidence was obtained, those concerns appear to implicate the opposing party’s lawyers, and the lawyers withdraw or say they cannot continue. Its reasoning is particularly engaged where the objection is under s 138, because that provision expressly allows for a balancing exercise rather than automatic exclusion ([28]-[32]).
It may also be relevant where no allegation of professional impropriety has actually been made against the lawyers, but judicial comments create an apparent concern about their participation in tendering the material. The Court stressed the importance of distinguishing the evidentiary objection from an allegation about the conduct of the legal team ([34]-[38]).
For adjournment purposes, the judgment highlights the actual preparation demands facing replacement counsel. Relevant circumstances identified here included the complexity of the case, the volume of the court record, the number and length of affidavits, and the amount of prior cross-examination that new counsel would need to understand ([20], [44]). Those features informed the conclusion that a few business days were insufficient in this case, not a universal minimum adjournment period.
The judgment does not establish that every withdrawal by counsel, every s 138 objection, or every allegation involving computer access requires an adjournment. Its holding is expressly tied to the unusual facts and to the reasons given by the primary judge ([25], [27], [39]).
The judgment is dated 21 August 2026, with amendments recorded on 24 August 2026. The supplied text contains no decisions after Hu and therefore does not establish how later courts have treated it. No later application, approval, distinction, or rejection can be inferred from the material provided.
The cases identified in the judgment are authorities that Hu itself cited when setting out the applicable approach. Alliance Living Pty Ltd v Arch-System Fabrication Pty Ltd [2026] NSWCA 157 is cited for leave-to-appeal principles and House v R review ([23]). Hamzy v NSW Commissioner of Police [2020] NSWCA 184 is cited for the reluctance to grant leave from a discretionary adjournment decision ([24]). House v R is applied as the framework for appellate intervention ([23], [25]).
The judgment also names other authorities within its summaries of those principles, but the reasons supplied do not provide a basis for describing subsequent treatment of Hu by those or other courts. Any claim about its later precedential reception would require later decisions not included in the source text.
The Court left the lawfulness of Mr Lu’s access unresolved. It expressly said it was unnecessary to determine the uncertainty about his status with Boill-related entities ([6]), and later said it was unnecessary to decide whether the evidence had been obtained improperly or illegally ([42]). The s 138 question therefore remained for the trial process, if pursued.
The judgment did not determine whether the screenshots or other evidence should be admitted. Section 138 requires a balancing exercise, but the appellate reasons did not apply that balance to the evidence or make findings about its probative value, importance, the seriousness or deliberateness of any impropriety, or the availability of the evidence through other means ([28]-[29]).
The Court did not decide the precise scope of any professional obligations owed by the barristers or solicitors in the circumstances. It addressed the specific reasoning that lawyers become tainted merely by asking for admission, and recognised that personal involvement would be different ([31], [36]). It also said that its clarification meant there was no ongoing reason, on the stated basis, to perceive a conflict requiring withdrawal ([46]).
Finally, the Court did not choose the appropriate length of adjournment. It held that the refusal of a longer period miscarried and remitted the application for reconsideration. The primary judge was to consider the application afresh in light of the appellate reasons and the practical circumstances of the trial ([46]-[49]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hu v Green Estate Australia Pty Ltd [2026] NSWCA 170
Hearing dates: 21 August 2026
Date of orders: 21 August 2026
Decision date: 21 August 2026
Before: Payne JA, Free JA and Griffiths AJA
Decision: 1. Grant leave to appeal.
2. Allow the appeal.
3. Remit the appellants’ application for an adjournment to the primary judge for reconsideration, having regard to this Court’s reasons for judgment.
4. The costs of the application for leave to appeal and the appeal be costs in the cause below.
Catchwords: CIVIL PROCEDURE — Hearings — Adjournment —Where primary judge made observations about lawfulness of access to a computer system by a witness called by the appellants and the implications for the appellants’ legal representatives in adducing that evidence — After taking advice counsel acting for appellants withdrew from proceedings and foreshadowed an application to seek leave for the instructing solicitors to withdraw — Application to adjourn proceedings to enable new legal representatives to be briefed — Primary judge prepared to adjourn the proceedings for only three business days to enable new legal representatives to be briefed — Held, granting leave to appeal and allowing the appeal, that the primary judge’s reasons for refusing a longer adjournment revealed errors of a kind in House v R and the discretion miscarried
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 138
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), rr 12.1 and 19
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 23 and 35
Cases Cited: Alliance Living Pty Ltd v Arch-System Fabrication Pty Ltd [2026] NSWCA 157
Hamzy v NSW Commissioner of Police [2020] NSWCA 184
House v R (1936) 55 CLR 499; [1936] HCA 40
Category: Principal judgment
Parties: Yuqing Hu (first applicant)
CXF Development Pty Ltd (second applicant)
CXH Development Pty Ltd (third applicant)
Green Estate Australia Pty Ltd (first respondent)
Oriental Management Pty Ltd (second respondent)
Representation: Counsel:
D L Williams SC, D L Cook SC, G E S Ng SC and A Rizk (applicants)
P Flynn SC with H Zhu (respondents)
Solicitors:
Bartier Perry (applicants)
Herbert Smith Freehills Kramer (respondents)
File Number(s): 2026/00342929
Publication restriction: Nil
THE COURT: The applicants move urgently on a summons seeking leave to appeal against a decision by Black J, who refused their application for an adjournment at the beginning of the ninth day of a trial. The trial had proceeded for four days in March 2026 and had resumed part heard in August 2026 with an estimate of a further 11 days. As will become apparent, the circumstances surrounding the application for an adjournment are very unusual, if not unique. They are also regrettable.
Directions were given by this Court for a concurrent hearing of the summons and any consequential appeal. The parties are to be commended for having the matter ready for hearing by us less than 48 hours after the proceedings were commenced.
The litigation concerns the nature and character of funds transferred from companies based in Hong Kong and Singapore to two Hong Kong companies forming part of the Boill group of companies (Boill), and then to the first respondent (Green Estate Australia Pty Ltd). The first applicant, Mr Yuqing Hu, is a director of Green Estate. Funds were transferred from Mr Hu’s bank account to the second and third applicants (CXF Development Pty Ltd and CXH Development Pty Ltd respectively). It is claimed that Mr Hu breached various duties owed to Green Estate in allegedly transferring the funds. The cross-claimants (who are the respondents to the summons) sought recovery of a sum exceeding $19 million (excluding interest) and the setting aside of an agreement (the Share Holding Agreement), under which shares in land-holding companies were held on trust for Mr Hu. The land-holdings of those companies are said to be worth between $70-100 million.
The trial commenced in March 2026. After four days of hearing, it was then adjourned until August 2026 because, inter alia, cross-examination by the cross-defendants below (who are the applicants on the summons) of another party’s first witness took much longer than expected, such that the hearing could not be completed within the allotted time.
The trial resumed before Black J on 11 August 2026, with an estimate of a further 11 days. By this stage, the trial concerned the first and second cross-claims.
A difficulty arose towards the end of the eighth day of the trial (i.e. 18 August 2026). The difficulty related to the trial judge’s consideration and observations concerning an objection taken by the cross-claimants to part of an affidavit dated 25 June 2026 by Mr Jian Ti Lu, a witness called by the cross-defendants. Mr Lu deposed that, on 6 June 2026, he had accessed the computer system of his former employer (Boill) and he extracted 11 screenshots which were sought to be adduced in evidence. Although Mr Lu said that he was no longer employed by Boill, he said in [3] of his affidavit that he was a consultant providing financial advisory services to that group. (There is some uncertainty regarding Mr Lu’s status with Boill, which is highlighted by an affidavit of Dongfang Qiu affirmed 21 July 2026 (see at [22] below), but it is unnecessary for us to resolve that uncertainty).
The primary judge was in the course of giving his preliminary rulings on the cross-claimants’ objections to evidence. An objection was made to documents annexed to Mr Lu’s affidavit under s 138 of the Evidence Act 1995 (NSW). His Honour then made various observations regarding the lawfulness of Mr Lu’s access to Boill’s computer system from which he retrieved the screenshots. These observations included comments which suggested that the primary judge was concerned that the legal representatives acting for the applicants may have had some personal involvement in that conduct or might otherwise be tainted by that conduct in seeking to have Mr Lu’s evidence admitted. Some of the primary judge’s observations were made notwithstanding that senior counsel acting for the cross-claimants confirmed that no allegation of impropriety or illegality was made against the witness or any of the barristers or solicitors representing the applicants as to relevant involvement in any impropriety or illegality.
FLYNN: Is it easier if I show your Honour what it is by reference to the exhibits? The NC system is the internal accounting finance system of Boill from which the cross-defendants have procured that Boill employees or ex‑employees extract records and then seek to give evidence about the meaning of those records. There's a s 138 objection which your Honour may need to defer until after the cross-examination when we elicit further evidence as to those circumstances.
HIS HONOUR: I'm sorry, can I have that again?
FLYNN: Yes.
HIS HONOUR: So the starting point of this is in the course of a proceeding in this court, former employees have entered the computer systems of their former employer without authority and extracted documents? Is that right?
FLYNN: Yes. Some of them have--
HIS HONOUR: Mr Cook, have you been informed of this?
FLYNN: Well, we've taken the objection to a number of witnesses. The s 138‑‑
HIS HONOUR: Yes, well, I'm expecting Mr Cook has discovered for the first time that he is being asked to be party to this process.
COOK: The evidence as I understand it is that the witnesses have access to the documents as part of the functions that they perform. I--
HIS HONOUR: Well, they are--
COOK: For example, this witness--
HIS HONOUR: --former employees--
COOK: Sorry, this witness particularly, let's deal with it one by one, is a consultant who provides services for Mr Qiu's companies, and he has access as part of that role, so--
HIS HONOUR: All right, well, do you wish to have an opportunity to consider your position?
COOK: No.
HIS HONOUR: I would have thought you might, because there is a concept of knowing involvement in Australian law.
COOK: Again, on what - this is a witness that we've called who's given us documents at--
HIS HONOUR: And I'm seriously being told that in this court, senior counsel, two junior counsel, and a firm of solicitors, are aware that a former employee or present consultant has accessed computer documents without authority and these documents are being tendered as part of an ongoing process?
COOK: I have no knowledge that this is without authority. But Mr Ng has--
HIS HONOUR: Perhaps, Mr Cook, I offered you an adjournment, perhaps you better go and find out.
COOK: Yes. Could I just indicate to your Honour that Mr Ng of senior counsel is going to address these issues, not me?
HIS HONOUR: Yes, all right.
NG: If your Honour were minded to offer the adjournment, we would take it to consider what has fallen from your Honour given the gravity of the observations that your Honour has made, and that might short-circuit this.
…
HIS HONOUR: But just to be clear about this, my concern at the moment is not admissibility. It's an ongoing criminal offence. That is, an unlawful intrusion into computer systems, which I would expect would be unlawful in each of the developed jurisdictions including this jurisdiction, which is ongoing, and with which parties are associating themselves so as to seek to obtain the benefit of that unlawful activity. What I find particularly presently disturbing about that matter is that if the position is that legal representatives who are admitted by this court have taken the view that they can stand by and participate in or propound the fruit of that activity while it is ongoing so as to obtain the advantage of that--
COOK: Just to be clear, my understanding of the evidence - and again, Mr Ng is dealing with this, but your Honour's comments apply to all of us - is that this witness's evidence is that he provides consultancy services and he has access legitimately to records. I'm not aware of any intrusion or hacking or anything to get into the company records.
HIS HONOUR: Mr Cook, my difficulty with that is that that is rather the same as the cleaner saying, "I provide services to the court legitimately, I have a key to the cupboards, and therefore I have gone through, taking judgments out of the cupboards, to give them to my friends."
COOK: I'm just making plain what my understanding--
HIS HONOUR: Mr Rizk is going to address that in due course.
COOK: Yes.
HIS HONOUR: But I just want to make clear to anyone, everyone, this in the first instance is not only a question about s 135 of the Evidence Act. How long do you need?
NG: 15 minutes?
HIS HONOUR: Yes. I'll adjourn until quarter past 3.
SHORT ADJOURNMENT
COOK: I had a chance to discuss it with Mr Flynn and Mr Rizk, the matter, they require more time to consider the position, and I require more time, light of what's fallen from your Honour, to see whether I can continue to act in this case. We'd ask that the matter stand down until 9.15, tomorrow.
HIS HONOUR: Is there nothing that can be done, in respect of other witnesses?
COOK: No, because the next witness has a problem. It wouldn't make sense to call Ms Yu now and start her, because we would probably need to take instructions about matters and that will complicate things. But in circumstances that your Honour's raised, that there's immediately a potential conflict between my professional interests and the interests of my client, and that's something I'll have to consider carefully, your Honour has indicated a view that we may be complicit in a criminal offence, and--
HIS HONOUR: No, Mr Cook, I have not indicated a view of that manner. I've indicated a question to be addressed by the parties.
COOK: Yes, and that's as--
HIS HONOUR: Again, I should make clear to avoid any misunderstanding, I am fully conscious of the fact that a trial judge in a matter of this kind should not form a view as to a matter of that issue, of that nature, in respect of legal representatives in the midst of the hearing, and I have not done so. If any issue in that respect arises, it will be a matter that would properly be addressed after judgment is reserved, delivered, and issues can then be addressed where no conflict of interest arises.
COOK: Yes. Nonetheless, given the serious matter that your Honour's raised, I think as a matter of professional responsibility, I should reflect on them and consider whether I'm able to continue to act in this matter.
HIS HONOUR: Yes, all right. Mr Golledge or Mr Flynn, what's your position at this stage?
FLYNN: We made the objection on the basis, effectively, that the impropriety was by inducing a breach of contract and we maintain that objection. We don't need to establish, we say, that it rises to the height of a criminal offence for the objection to stand. I don't know if that affects my friend's position, but we do say this issue travels across a number of witnesses. So, it is an important matter. If my friend says he needs time, then he needs time. Because on any view, there's been a number of witness ex-employees, some of whom have retained physical copies of documents on the face of their own affidavits.
…
FLYNN: Yes, I accept that.
HIS HONOUR: …
What I had not understood from the objections, in respect of this witness, which may put this witness in a different character position, depending upon any inquiries that might be made, is if there is a suggestion that in the course of these proceedings, the witness has, in effect, gone into a computer system in an unauthorised way, where I would have, I think, been entitled to assume that at least the legal systems of Hong Kong, Singapore and Australia would be conscious of the desirability of prohibiting unauthorised access to computer systems.
That, on one view, is of a different character to looking in one's metaphorical bottom drawer for the documents that have been left over from your former employment. Again, I expressly do not express any view of that, but that is what led to my expressing concern.
COOK: Sorry, could I just make it very plain that I have no inkling of an idea that there was a suggestion that any of the documents obtained in these proceedings were obtained in an unlawful manner. Plainly, I understood the evidence to be that the documents were part of a system to which this witness is entitled to have access to.
It really comes as a shock to me to suggest that this has been an unauthorised access of a computer system contrary to some law, and that's why I need time to reflect on that. It hadn't even occurred to me that that was a possibility that that accusation might be made, or that inference may arise.
HIS HONOUR: Once again, Mr Cook, an accusation hasn't been made; a question has been asked.
FLYNN: Yes.
HIS HONOUR: Which is whether a person who has access for certain purposes, undertakes an unauthorised access for other purposes, and certainly, as far as I'm aware, there have been occasions on which persons, for example, been prosecuted, at least in Australia and in the United States, for their use of authorised access to systems for unauthorised purposes.
That is the question and I am not expressing any view as to the answer to it. It is complicated here because of the existence of foreign law. But, again, as a matter of first impression, and it's only a matter of first impression, I would've thought, I'd be quite wrong, that, for example, a solicitor who was told that a consultant was using access to its principal system, in order to gather evidence to be led against the principal, would wonder at that point about their professional obligations. I may be wrong in that respect, but that is the question.
…
HIS HONOUR: First, I should also indicate to the parties that the parties should not assume that a succession of adjournments will be available on this issue, in the sense that if there is a difficulty with one witness, the next witness will need to be available. This is already in difficulty, so far as its timing is concerned. So, the position as to one witness can be addressed by deferring that witness, if that arises. You should not assume that I will not require the next witness to be called tomorrow.
FLYNN: Yes. Can I indicate just one more matter, in case it's of assistance to your Honour and my friend? The objection to the NC records, on the basis of the impropriety is one of the objections. The other objection is a s 135 objection which is effectively the reason, as we understand, that these records are accessed, or at least one of the reasons, is because there's some Chinese characters that some of the witnesses have said mean "collect and pay".
Now, we have a s 135 objection on that as well, on the basis that it is entirely unclear as to what any particular witness means by it. We also have a hearsay s 69 objection on the basis that, on the face of the records, it appears someone who is not a witness prepared them, and there's going to be a wholly collateral inquiry to go into what some particular Boill witness meant by the Chinese characters, "collect and pay", when these were inserted back when they were.
That is an additional basis for the objection. I'm not sure whether that affects the present issue, but it is an additional basis on which the evidence can be objected because we are concerned that, otherwise, there's going to have to be collateral inquiry about what someone, who's not a party, may have meant by those ambiguous words. Even one of our friend's own witnesses say it's a colloquial term, and our friends seem to rely heavily upon it. Anyway, I just add those observations, in case they're of assistance.
HIS HONOUR: Mr Cook will have heard all of that. While we are identifying issues that arise tomorrow, the one other issue that I think I should note in that respect is it seems at least possible, Mr Cook, that if you and those instructing you have satisfied yourselves that there is no difficulty affecting you, and I will not be making further inquiry in respect of that matter for the moment, that is a matter for you, if you have all satisfied yourselves that there is no difficulty presently affecting you, and that the evidence is pressed, then there may be a question of a voir dire in respect of this witness as to the source of the information on which he relies.
But one issue that I had identified earlier, that had troubled me and continues to trouble me, is that I think what I will need to do in respect of witnesses is to provide a self-incrimination warning that I will not be able to provide protection against self-incrimination, because any self‑incrimination that arises will be self-incrimination under several systems of foreign law. That may arise on the first occasion, in respect of any voir dire affecting this witness.
Again, that is a matter which I raise simply to allow the opportunity to reflect upon it. The Court will now adjourn until 9.15am, tomorrow.
Further to the exchanges with Counsel which occurred immediately before the adjournment this afternoon, his Honour has asked me to draw attention to s 308H of the Crimes Act 1900 (NSW) and ss 10C and 10E of that Act and to consideration of the former section in Salter v DPP (NSW) [2011] NSWCA 190; and to section 478.1 and Division 15 of the Criminal Code Act 1995 (Cth).
HIS HONOUR: Yes, Mr Cook, you're on your feet?
COOK: I've reflected on the events of yesterday and I've sought advice. I have come to the conclusion that I am compelled by the barristers' rules to return my brief in this matter. Mr Ng has done the same and come to that conclusion as well, as has Mr Rizk. I understand that my solicitors seek to withdraw as solicitors on the record. In those circumstances, I seek that the matter be adjourned for a sufficient period of time to allow my clients to get new legal representation.
HIS HONOUR: The difficulty is, Mr Cook, to begin with, so far as your solicitors are applying for leave to withdraw, then you, if you are bound to withdraw, presumably cannot bring that application on their behalf.
COOK: I bring that application on their behalf. I also make the application for an adjournment on the behalf of the client to protect their positions.
HIS HONOUR: I'm sorry, again I don't quite follow. You consider you are so conflicted that you cannot conduct the proceedings, but you are not so conflicted that you can bring an application for your solicitors for leave to withdraw?
COOK: Yes. In the time available to my solicitors, there's no one else to appear before--
HIS HONOUR: Your solicitors are present.
COOK: Well, if--
HIS HONOUR: All right. I note your position in that respect. So an application is made orally by you, notwithstanding that you have announced your intention to withdraw, for leave for your solicitors to cease to act?
COOK: Yes.
HIS HONOUR: Yes. Do the plaintiffs seek to be heard as to this application?
FLYNN: We don't have a position on the application for leave to withdraw.
HIS HONOUR: All right.
COOK: Just to be clear, my first application is that the matter should be adjourned, and that application should be dealt with first, and the matter of my solicitors withdrawing can be dealt with after that application. Of paramount importance to my clients' interests is that your Honour deal with the application for adjournment first.
HIS HONOUR: Yes, all right. I take it there's no difficulty either with my taking that course so far as the plaintiffs are concerned?
FLYNN: No. We accept that the application to adjourn can be dealt with first in the sense that we don't challenge our friend's ability to make that application.
HIS HONOUR: Yes.
FLYNN: Our position on the application for the adjournment is that we--
HIS HONOUR: No, no, before you tell me what your - unless you think it will be useful for me for you to tell me the bottom line first, it is probably preferable that I permit Mr Cook to say what Mr Cook wishes to say before you respond to it.
FLYNN: May it please the Court.
HIS HONOUR: Yes. Now--
COOK: The application--
HIS HONOUR: Mr Cook, just before you begin, I should point out that this application itself may cause embarrassment to you because of the potential ‑ inconsistency is one possible word, tension is another possible word within your position, because so far as an adjournment application is concerned, a first issue will arise, or may arise, as to why, with the benefit of a short adjournment, it would not be possible for your clients to simply lead such evidence as they may lawfully lead, thereby addressing any difficulty.
I draw that matter to your attention, so in one respect there is a potential overlap between the application you now bring and your perception of your perceived conflict, but I have no difficulty with hearing you. I'm drawing that to your attention because in a sense the matters relevant to an adjournment will lead to us to canvas some of those matters that may underlie your perception that you are either bound to or entitled to withdraw.
COOK: Yes. I put the application on the basis that I have formed a view on advice that I am precluded from acting further in this matter beyond seeking an application for an adjournment of proceedings. The application for the adjournment is put on the basis that my client is without legal representation upon my withdrawing from the matter, and in those circumstances, the dictates of justice require an adjournment of this hearing to allow my clients sufficient time to get replacement legal representatives.
HIS HONOUR: Yes. That's all you wish to say in--
COOK: That's all I wish to say.
HIS HONOUR: --respect of the application?
COOK: Yes.
HIS HONOUR: Yes.
FLYNN: We are here ready to begin the cross-examination. We do not consent to an adjournment application, but we don't say anything else other than we are ready to proceed and we do not consent. ...
HIS HONOUR: All right. Has Mr Cook seen these proposed orders?
FLYNN: No, he has not.
HIS HONOUR: All right.
FLYNN: We weren't quite sure how things were going to develop this morning.
HIS HONOUR: Yes.
COOK: With respect, I informed my colleagues last night of our position in this matter. My application would be to resist these orders. The matters that are raised in here would require me to advance arguments that extend beyond what I put to your Honour, and given the views that I've reached, it would be inappropriate for me to argue in relation to these matters.
HIS HONOUR: In those circumstances - again, Mr Cook, that rather highlights the difficulty where you take the position you can be heard as to some matters and not others within the same application. But again, I note your position.
FOR JUDGMENT SEE SEPARATE TRANSCRIPT
HIS HONOUR: Yes, Mr Cook?
COOK: I make an application for the matter to be adjourned until 10 o'clock on Friday morning to allow my clients to approach the Court of Appeal, on an urgent basis, for leave to appeal your Honour's refusal of the application.
HIS HONOUR: Yes.
COOK: There can be no prejudice to the other side, in circumstances where the matter has sufficient time to complete, if the defendants are unable to represent themselves and conduct these proceedings in any event. I would seek an adjournment until 10 o'clock for that purpose.
HIS HONOUR: Yes. Mr Flynn?
FLYNN: We understand your Honour has already indicated an adjournment to Friday would be granted. The purpose for what our friends do is really a matter for them, so I'm not sure I need to express a position.
HIS HONOUR: You don't seek to be heard further in that regard?
FLYNN: No.
HIS HONOUR: I'll deliver a further judgment.
FOR JUDGMENT SEE SEPARATE TRANSCRIPT
HIS HONOUR: I should ask the court reporter to try and arrange an urgent transcript which will be required by the Court of Appeal.
As the transcript records, his Honour delivered two ex tempore judgments. The first relates to the application for an adjournment for a period described by the primary judge as “a presently unspecified future date”. It is this judgment which gives rise to the present applications before us.
Although his Honour was not prepared to grant an adjournment until some unspecified future date, his Honour said that he would have been inclined to adjourn the matter to Friday 21 August 2026 or to Tuesday 25 August 2026 to allow new counsel to be retained.
His Honour’s reasons for refusing an application which was for an adjournment of “some weeks or months” may be summarised as follows:
(a) It was likely that the cost of the proceedings had already increased following the previous adjournment from March until August and those costs would further increase if the remainder of the trial in August was adjourned to a presently unspecified future date. (b) The quality of justice would deteriorate with the passage of time, with particular reference to witnesses’ recollection of the events. (c) A further adjournment for weeks or months would have adverse consequences to the community with respect to access to the Courts by other litigants.
His Honour indicated that if the balance of the hearing time was lost, the next available hearing dates before his Honour would not arise until mid-November 2026.
Later in the first ex tempore reasons, his Honour gave the following additional reasons for not adjourning the proceedings for a substantial period:
(a) His Honour said that it was not apparent to him why counsel was obliged to withdraw but he inferred that the basis related to what had occurred the previous day regarding the objection to Mr Lu’s affidavit. (b) His Honour then gave a broad summary of the exchanges the previous day concerning that objection to Mr Lu’s evidence. (c) His Honour said that although he originally understood the objection to be based on illegality, he acknowledged that Mr Flynn SC clarified that the objection to the evidence on the basis of s 138 of the Evidence Act related to improperly obtained evidence and not illegally obtained evidence. (d) His Honour expressed the view, in a number of different ways, that any perceived conflict on the part of Mr Cook SC and his team could be resolved on the basis that counsel had overriding obligations to the Court which meant that counsel retained the discretion, if not obligation, not to adduce evidence that might otherwise be favourable to counsel’s client. On that basis his Honour suggested that the conflict apparently perceived by Mr Cook SC could be resolved if the affected evidence was not read. For the same reason, his Honour was doubtful that this issue would present an obstacle to any new counsel taking over carriage of the matter, because the same solution would apply to resolve any perceived conflict. (e) As will emerge, his Honour appears not to have appreciated that this suggested resolution of the difficulty was not a solution to the conflict affecting counsel, but rather an illustration of the conflict itself because it would involve counsel prioritising their own interests over the interests of the client. The conflict exists having regard the nature of the duties owed to both the Court and the client (see rr 23 and 35 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and rr 12.1 and 19 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)). (f) If counsel considered that they were obliged to withdraw, his Honour would have readily allowed a shorter adjournment to enable other counsel to be retained and the Court could work to accommodate the time necessary for new counsel to be briefed and able to represent the applicants. (g) His Honour noted that the applicants’ solicitors, although foreshadowing an application to cease to act, had not yet made any such application and it was possible that any such application may not be granted given its timing.
The applicants in the present proceedings relied on an affidavit dated 19 August 2026 by their instructing solicitor, Mr Gavin Stuart. Mr Stuart has been in continuous practice as a solicitor for over 29 years and had headed the commercial disputes and litigation team at Bartier Perry for over 15 years. He deposed that it would not be possible for replacement solicitors to be ready to continue the hearing of the trial and properly to brief new counsel in any period less than a month. He emphasised that the main Court Book contains almost 1800 pages and the supplementary court book is approximately 1000 pages. Mr Stuart also deposed that instructions had to be taken from a Mr Hu and his wife, Ms Yu who both reside in China. Neither Mr Hu or Ms Yu speak English and therefore any solicitors taking instructions from Mr Hu or Ms Yu who are not Mandarin speaking would require interpreters.
Mr Stuart further deposed that he considered that his firm could not continue to act as solicitors for the applicant “where the professional conduct of me as the solicitor on record and my firm and the counsel team in the course of the hearing was at one stage described as involving knowing assistance in the commission of an ongoing criminal offence”.
The respondents relied on an affidavit of Leon Chung dated 20 August 2026. He referred to [9] of an affidavit of Dongfang Qiu affirmed 21 July 2026, which responded to Mr Lu’s affidavit as follows:
Paragraph 9 of that affidavit of Dongfang Qiu states as follows:
I refer to paragraph 3 of Lu's Affidavit, in which Mr Lu states that he has been engaged by Shanghai Jiafu Investment Co Ltd (Shanghai Jiafu) as a "consultant to provide financial advisory services to the Boil/ Group". Mr Lu is employed by Shanghai Baoji Health Management Co., Ltd., which I control as an executive director and majority shareholder. Mr Lu's role is that of an employee with this company, not a consultant. Shanghai Jiafu is the parent company of Boil/ Holding Group Co. Ltd (BHG), and I am the executive director of Shanghai Jiafu. Mr Lu is not an employee of Shanghai Jiafu or of BHG.
Generally, a grant of leave to appeal “requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”: see Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ, with whom Ward P and Basten AJA agreed), and cases cited there. Moreover, where, as here, the subject of the appeal relates to matters of practice and procedure, there is a well-known reluctance to grant leave to appeal, which reflects the undesirability of the delay and cost associated with challenges to exercises of discretion in interlocutory applications: see In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189 at [65] …
Finally, to the extent that the primary judge's decision was discretionary, appellate intervention will only be warranted in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. To succeed, Alliance must establish material error in the making of a finding of fact upon which the decision is based, in the taking or not taking into account of material factors or in some other matter of principle. If no specific error can be established, error may be inferred if the decision is unreasonable or plainly unjust.
A decision whether or not to grant an adjournment application is, perhaps par excellence, a decision on a matter of practice and procedure generally involving discretionary considerations. As Simpson AJA and I observed in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], “a ‘heavy burden’ lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure”, and an application for leave to appeal will rarely be granted in such circumstances.
Despite the Court’s strong reluctance to grant leave to appeal in respect of an adjournment application, we consider this is one of those rare cases in which leave should be granted. The circumstances are most unusual, not the least because the adjournment application was prompted by matters raised by the primary judge himself, which then caused counsel to consider their own professional obligations and ultimately withdraw from acting for the applicants. We are also satisfied that there is a serious question to be tried as to whether his Honour’s refusal of the adjournment application (which was made in the exercise of discretion) miscarried with reference to one or more of the kinds of described in House v R (1936) 55 CLR 499; [1936] HCA 40 at 505. In the unusual circumstances here, we consider that the primary judge’s observations which led to counsel withdrawing and then seeking a longer adjournment than his Honour was prepared to give were based on a misunderstanding on the part of the primary judge as to the operation of s 138 of the Evidence Act. We also consider that his Honour’s refusal to give a longer adjournment was, in the unusual circumstances here, manifestly unreasonable or plainly unjust.
We shall elaborate on those matters when we explain why we also consider that the appeal should be allowed, to which we now turn.
We should emphasise at the outset that our reasons for allowing the appeal are directed only to the challenge to the primary judge’s decision to refuse an adjournment for a period longer than only a few days.
For the following reasons, we consider that the primary judge appears to have misunderstood the operation of s 138 of the Evidence Act in the context of the confined and conventional objection raised by Mr Flynn SC. Section 138 provides:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
We would make the following observations regarding this provision. First, even if a Court finds that evidence has been obtained improperly or illegally as described in s 138(1), the Court has a discretion to admit the evidence if the desirability of doing so outweighs the undesirability of obtaining evidence improperly or illegally.
Secondly, the existence of the discretion necessarily means that the legal practitioners representing a party who wishes to have the material admitted into evidence will seek to persuade the trial judge to have the evidence admitted despite any impropriety or illegality in how it was obtained.
Thirdly, putting to one side the different considerations that might arise where a legal practitioner is found to have had personal involvement in the conduct which caused the evidence to be improperly or illegally obtained, a legal practitioner cannot be tainted with any such impropriety or illegality merely because they seek to lead evidence of this kind by persuading the trial judge to admit the evidence in the exercise of the discretion under s 138(1).
It appears that his Honour may not have appreciated these three significant features of s 138, perhaps because of a misapprehension of the basis of the cross-claimants’ objection, despite Mr Flynn SC's efforts to clarify that matter.
In the circumstances, we think it desirable for the future conduct of the proceedings that we make the following clear and unequivocal statements, which hopefully will remove the basis upon which the legal representatives felt compelled to withdraw from the proceedings.
First, Mr Flynn SC confirmed that the cross-claimants have not and do not propose to make any allegation of unlawful or improper conduct on the part of any of the appellants’ counsel or solicitors relation to Mr Lu’s affidavit. It is most regrettable that the primary judge apparently proceeded on an erroneous misunderstanding that impropriety and/or involvement in unlawful conduct by the legal representatives was being raised either expressly or as a necessary implication, by the objection. That was not the case. It is important for all concerned and for the orderly conduct of proceedings to clarify this now.
Secondly, to the extent that the primary judge considered that there was an allegation that one or more of the appellants’ lawyers was being accused of procuring a breach of contract, no such allegation has been made by the cross-claimants and Mr Flynn SC has made clear that there is no intention to make any such allegation. Mr Flynn SC also confirmed that the cross-claimants would not seek to cross-examine any witness with a view to establishing illegal or improper conduct on the part of any member of the appellants' legal team.
Thirdly, it is difficult to understand the primary judge’s numerous references, as recorded in the transcript for 18 August 2026, to his concerns regarding “knowing involvement” in “an ongoing criminal offence”. His Honour appears to have had in mind that if a legal representative seeks to tender evidence which had in the past been obtained unlawfully in the first instance by the witness or somebody else, the lawyer somehow becomes involved in an ongoing criminal offence. We state unequivocally that any such proposition is incorrect. Given this appears to have been a proposition that led Mr Cook SC and his colleagues to conclude that they were in a position of conflict, any perception of conflict ought now disappear.
(a) The proceedings raised some complex issues, as is evident from the brief description at [3] above. This complexity necessarily bears upon an assessment of what reasonable time would be required by replacement legal practitioners to come into the proceedings on behalf of the appellants. (b) After the four days of hearing in March as well as the four days of hearing in August, it is unsurprising that the case had generated a substantial mass of material, comprising a total of six volumes of the Court Book and Supplementary Court Book and involving no less than 26 affidavits, some of them lengthy. (c) Although cross-examination of the respondents’ witnesses was complete by the eighth day of the trial, two of those witnesses had been cross-examined over several days. It is not an overstatement to say, as the appellants do, that “absorbing and understanding the transcript of the cross-examination would pose a monumental challenge for any new counsel”.
For all these reasons, we are satisfied that the primary judge’s discretion miscarried.
It is preferable, with the primary judge’s familiarity with the case as a whole and his knowledge of his own availability, for the adjournment application to be remitted to him for reconsideration, taking into account these reasons for judgment. That will also allow the appellants’ legal representatives to consider their position in light of our reasons, before the parties and the Court address the way forward. The clarification of matters set out above ought make clear that there was and is no basis to apprehend that the s 138 objection raises issues of personal impropriety or illegality on the part of legal representatives, which in turn means that there is no ongoing reason to perceive a conflict of interest that would justify or require the withdrawal of those representatives.
For all these reasons, and in the unusual circumstances of this case, leave to appeal will be granted and the appeal allowed. The appellants’ application for an adjournment should be remitted to the primary judge for reconsideration, having regard to these reasons for judgment.
Having regard to the regrettable circumstances which have prompted these proceedings, we consider that the appropriate order is that costs of the application for leave to appeal and the appeal be costs in the cause below.
The orders of the Court are:
Grant leave to appeal.
Allow the appeal.
Remit the appellants’ application for an adjournment to the primary judge for reconsideration, having regard to this Court’s reasons for judgment.
The costs of the application for leave to appeal and the appeal be costs in the cause below.
**********
[42]: add full stop and "It" after "properly be made". [47]: add "below" after "cause" to reflect orders entered as per coversheet
Hu
Green Estate Australia Pty Ltd
[2026] NSWCA 157
[1936] HCA 40
(1936) 55 CLR 499
(2022) 108 NSWLR 342
Leave to appeal granted; appeal allowed; the appellants’ adjournment application remitted to the primary judge for reconsideration having regard to the Court of Appeal’s reasons; costs of the leave application and appeal to be costs in the cause below.
The primary judge’s comments and observations ultimately led to counsel for the cross-defendants (Messrs Cook SC, Ng SC and Rizk) withdrawing from the proceedings on the morning of the ninth day of the trial (19 August 2026) and making an oral application for leave for their instructing solicitors (Bartier Perry) to withdraw. In the light of those matters, the cross-defendants applied to have the proceedings adjourned for a sufficient time so that new legal representatives could be briefed.
It is desirable to set out the relevant parts of the transcript on both 18 and 19 August 2026 (noting that Mr Golledge SC and Mr Flynn SC appeared with Ms Zhu for the cross-claimants across these particular days of the trial). We will emphasise the key parts of the transcript and which highlight the primary judge’s observations and comments which have prompted the present urgent proceeding before us.
Fourthly, in circumstances where the cross-claimants have not alleged any impropriety or illegality on the part of the appellants’ legal team, there was no occasion for the trial judge to investigate or comment upon any claim that the parties have not made.
Having regard to the primary judge’s observations which we have highlighted in the extracts above from the transcript dated 18 August 2026, it appears that his Honour may have misapprehended the scope and implications of s 138 when counsel, acting on the instructions of their solicitors, sought to adduce Mr Lu’s evidence. Those observations prompted counsel to consider their position and ultimately withdraw from the proceeding. As we have said it was, and is, no part of the cross-claimants’ case that those legal advisers had engaged in any illegal or improper conduct. There was, and remains, no basis for any suggestion that the conduct of any of the cross-claimants’ legal advisers was illegal or improper.
For the following reasons, we consider that it was also unreasonable and unjust for the primary judge to decline to adjourn the hearing for a period any longer than a few days. His Honour’s reasoning also involved a mistake of principle of the kind that justifies disturbing his Honour’s conclusion, notwithstanding that it involves a discretionary judgment on a matter of practice and procedure.
The first reason given by his Honour for refusing to adjourn the proceedings for a longer period appears to be based on his doubts that the appellants’ counsel needed to withdraw. This was because his Honour considered that any conflict between counsels’ duty to their clients was secondary to their duty to the Court. His Honour believed that the conflict could be avoided if the relevant parts of the Lu affidavit were not read.
We respectfully consider that this path of reasoning is flawed. First, as we have said, his Honour appears to have misconceived the significance of the effect of s 138 of the Evidence Act. That provision contemplates the possibility that improperly or illegally obtained evidence might still be adduced in evidence, depending upon the Court’s discretion. This is reflected in the terms of s 138(1) which provide that evidence which has been improperly or illegally obtained is not to be admitted “unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. His Honour erred in his evident assumption that the evidence obtained improperly or illegally could not be adduced in evidence.
Secondly, there is no need for us to decide whether the relevant evidence had been obtained improperly or illegally by the witness. Assuming for the sake of argument that it was, as we have explained above, this would not mean that legal representatives who then sought to tender the evidence so obtained would themselves become tainted with that earlier impropriety or illegality. At the risk of repetition, no such allegation is made or could properly be made. It is entirely orthodox for parties, including prosecutorial authorities, to seek to rely on evidence in circumstances where it is either established or conceded that the evidence was obtained improperly or illegally.
Thirdly, we accept the appellants’ contention that his Honour’s characterisation of the potential conflict in which counsel found themselves was incorrect. The primary judge’s stated concerns regarding the propriety or legality of the evidence placed the appellants’ legal representative in a position of at least apparent conflict because the possibility of them facing either professional or criminal sanctions necessarily affected the objectivity of their actions and decisions in the course of the proceedings. It may have been possible for the appellants’ counsel to have addressed the point in a way which satisfied his Honour that the perceived problem with the position of the legal representatives, when properly scrutinised having regard to s 138 and the nature of the objection, was not a real problem. Such an exercise may have led to swift resolution of the issue, in a way which would have removed any basis to perceive a conflict of interest. Regrettably, but with no criticism intended of the practitioners involved, that did not occur.
Fourthly, while the primary judge was obviously correct to take into account the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), the appellants were also entitled to procedural fairness and a reasonable opportunity to present their case. Having regard to the following matters, we consider that an adjournment of only three business days was inadequate to enable replacement legal practitioners to represent the appellants at a resumed hearing on the premise that existing counsel would be withdrawing: