Maradox Pty Ltd v Normet Industries Nominees Pty Ltd [2026] VSC 140

Mr I Upjohn KC with Mr JS Mereine, Mr P Donovan and Mr B Mason of counsel

For the Second, Third, Fourth, Eleventh, Twelfth and Thirteenth Defendants

Mr D Batt KC with Mr G Kozminsky, Mr K Raghavan and Dr P Turner of counsel

1 These are revised reasons for a ruling delivered ex tempore on 17 March 2026.[1]

2 The trial of this proceeding commenced on 9 February 2026 and has continued since that date. The proceeding concerns a dispute about the beneficial ownership of a substantial and successful metal recycling business known as Norstar. The late Raymond A Sailah established the business in 1947 and initially owned and conducted it personally. In the mid-1970s ownership passed to the Sailah Family Trust (SFT) and in 2007 a corporate entity was interposed as the owner of the business, with the SFT retaining a controlling interest.

3 The first plaintiff, Maradox Pty Ltd, and the second plaintiff, Paul Sailah, bring the proceeding against members of the wider Sailah family and a number of former professional advisers. The Sailah family defendants are Paul's half-brothers Raymond J Sailah and James Sailah, his stepmother Corry Sailah, and their associated corporate trustees (together, the Corry defendants). The professional adviser defendants include the fifth defendant, Mr Stuart Hall, an accountant, and various solicitors all of whom acted for the Sailah family over many years.

4 The central issue concerns the restructure of the Norstar business in June 2007 (2007 Restructure) and its effect on the beneficial ownership of the business. As part of that restructure, the SFT acquired 50.1% of the shares in the corporate entity that owns the business (Norstar Recycling Pty Ltd), with the remaining 49.9% acquired by the plaintiffs.

5 The dispute turns on whether, as part of that same restructure, Paul Sailah agreed with other members of the Sailah family to purchase an additional 25% beneficial interest in the Norstar business, taking his total interest from 50% to 75% with the acquisition to be paid by the transfer of dividends and tax rebates over ten years (2007 Agreement).

6 Paul Sailah says the 2007 Agreement was reached at a meeting he had with Raymond J Sailah and Mr Hall in the Norstar boardroom in or about late June 2007. Paul Sailah says it was agreed that Maradox (as trustee for the Paul Sailah Assets Trust) would purchase 49.9% of the shares in Norstar Recycling for approximately $39.92 million funded by an interest-free vendor loan from the SFT, that the loan would be repaid from dividends and tax rebates over ten years, that his SFT distributions would be temporarily reduced while the loan remained outstanding as compensation for its interest-free nature, and that on repayment his full entitlement would resume. He says that when the loan was repaid in 2017 by the transfer back of shares, his entitlement was not restored and distributions have since been made on an incorrect basis.

7 The Corry defendants deny any such agreement, contending that the 2007 Restructure was undertaken to deliver tax benefits to Paul Sailah and that the underlying fifty‑fifty split of the business was never changed.

8 The claims against the professional adviser defendants, including Mr Hall, concern their conduct in connection with the preparation and execution of a new deed of appointment for the SFT in 2017 (2017 Deed). Paul Sailah alleges that those advisers, each of whom he says was aware of the 2007 Agreement, failed to advise him that the 2017 Deed did not restore his entitlement to 50% of the SFT's income and capital referable to Norstar, and that in presenting and procuring his execution of that deed they acted in breach of their contractual, tortious and fiduciary duties and engaged in misleading and deceptive conduct.

9 Mr Hall has been called as a witness, has given evidence in-chief and cross‑examination has now commenced. Mr Hall's counsel has raised an objection on his behalf under s 128 of the Evidence Act 2008 (Vic) (EA).

10 Section 128 of the EA relevantly provides:

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness -

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness -

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and

(b) that the court will give a certificate under this section if -

(i) the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii) the witness gives the evidence after being required to do so under subsection (4); and

(4) The court may require the witness to give the evidence if the court is satisfied that -

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The court is also to cause a witness to be given a certificate under this section if -

(a) the objection has been overruled; and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7) In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence -

(a) evidence given by a person in respect of which a certificate under this section has been given; and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence -

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

11 The objection is raised in anticipation that during cross-examination, Mr Hall will be questioned about his involvement in preparing and amending a series of documents in which commercial justifications were advanced for the 2007 Restructure, and about how the information in those documents came to be conveyed to the Australian Taxation Office (ATO) during its audit and investigation of Paul Sailah's tax affairs between 2014 and 2017.

12 The basis of the objection is that Mr Hall apprehends that if such questions are put to him, his answers may tend to prove that he has committed an offence against or arising under an Australian law or that he is liable to a civil penalty.

(a) a document entitled 'Summary of events for the Norstar restructure' prepared in or around August 2014 which has been referred to in the proceeding as the 'Commercial Reasons Paper';[2]

(b) a document prepared in or around January 2016 in response to the ATO's Part IVA Position Paper;[3] and

(c) a document, prepared on or about 29 June 2016, containing responses to the ATO's request for further information dated 27 May 2016.[4]

1. ARE THERE REASONABLE GROUNDS FOR THE OBJECTION?

14 The accuracy of statements made to the ATO in these documents, and Mr Hall's role in preparing them, are matters I must consider in this proceeding. Evidence bearing on those matters may tend to prove that Mr Hall has committed an offence or is liable to a civil penalty under Australian law. The potentially applicable provisions, and what they relevantly proscribe, are as follows:

(a) Taxation Administration Act 1953 (Cth):

(i) section 8K(1), which prohibits making a statement to a taxation officer, whether orally or in writing, which is false or misleading in a material particular;

(ii) section 8K(1B), which prohibits making a statement to a taxation officer that is false or misleading in a material particular by reason of the omission of relevant information;

(iii) section 8L, which prohibits incorrectly keeping records required to be maintained under a taxation law, including by omitting material matters or making entries, which renders the recorded matter incorrect; and

(iv) section 8N, which prohibits recklessly making a false or misleading statement to a taxation officer.

(i) section 11.2, which provides that a person who aids, abets, counsels or procures the commission of an offence is taken to have committed that offence;

(ii) section 11.2A, which extends complicity to cases of joint commission;

(iii) section 134.2, which creates a general dishonesty offence of obtaining a financial advantage against a Commonwealth entity by deception;

(iv) section 135.1, which creates a broadly framed general dishonesty offence where a person dishonestly obtains a gain, causes a loss, or influences the exercise of a public duty, such as the administration of the taxation laws, against a Commonwealth entity;

(v) section 135.2, which makes it an offence to obtain a financial advantage against a Commonwealth entity that a person knows or believes they are not entitled to; and

(vi) section 135.4, which deals with conspiracy to defraud where two or more persons conspire to dishonestly obtain a gain, cause a loss, or influence the exercise of a public duty against a Commonwealth entity.

15 Taken together, these provisions engage a broad range of potential criminal and civil penalty liability arising from the making of false, misleading or incomplete representations to the ATO, whether by direct statement or omission, whether made knowingly or recklessly, and whether committed alone or in concert with others.

16 Having considered the nature of the documents, the subject matter of the anticipated questions and the provisions identified above, I am satisfied, pursuant to s 128(2) of the EA, that there are reasonable grounds for the objection.

1. DO THE INTERESTS OF JUSTICE REQUIRE THAT THE EVIDENCE BE GIVEN?

17 Having determined that there are reasonable grounds for the objection, pursuant to s 128(3) of the EA, I informed Mr Hall that:

(a) he need not give the evidence objected to unless required to do so by the Court under s 128(4) of the EA;

(b) the Court would give him a certificate under s 128 of the EA if:

(i) he willingly gave the evidence without being required to do so under s 128(4) of the EA; or

(ii) he gave the evidence after being required to do so under s 128(4) of the EA; and

(c) evidence given by him in respect of which a certificate under s 128 of the EA has been given and evidence of any information, document or thing obtained as a direct or indirect consequence of him giving such evidence cannot be used against him except in a criminal proceeding in respect of the falsity of that evidence.

18 Mr Hall has indicated, through his counsel, that he is not willingly prepared to give the evidence without being required to do so.

19 Pursuant to s 128(4) of the EA, the Court may require Mr Hall to give the evidence objected to if the Court is satisfied that:

(a) the evidence does not tend to prove that Mr Hall has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b) the interests of justice require that Mr Hall give the evidence.

20 I am satisfied that the evidence objected to does not tend to prove that Mr Hall has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country. The question, therefore, is whether the interests of justice require Mr Hall to give the evidence.

21 Mr Kozminsky, for the Corry defendants, submitted that the interests of justice require Mr Hall to give the evidence to which objection has been taken. He submitted that the evidence goes not merely to credit but to the central factual issue in the case, namely whether the 2007 Agreement was made, and that Mr Hall, as an author of the documents, can give direct evidence about whether the statements in them were true or false. He submitted that no other evidence is of the same character or quality and, as the plaintiffs rely heavily on these documents, it would be unfair to the Corry defendants if Mr Hall were not asked about them. Mr Kozminsky further submitted that Mr Hall has no financial interest in the outcome, that he is not subject to criminal proceedings and that a certificate provides real (if imperfect) protection.

22 Mr Mereine, for the plaintiffs, submitted that the plaintiffs take no position on whether the interests of justice require Mr Hall to give evidence. He did, however, make submissions on the relevant factors the Court should consider in reaching that decision.

23 Dr Hanak KC, for Mr Hall, initially indicated that no submission would be made that the interests of justice did not require Mr Hall to give evidence. However, after hearing the submissions of Mr Kozminsky and Mr Mereine, Dr Hanak submitted that the interests of justice did not require Mr Hall to do so. He submitted that the Court already had direct evidence from all three people said to have been at the boardroom meeting in 2007 where the 2007 Agreement is alleged to have been reached, and that the particular documents are an anomaly in an otherwise overwhelming documentary record pointing the other way. Regarding the Commercial Reasons Paper, he submitted that Raymond J Sailah had already been taken through it extensively in cross-examination and had identified which statements he accepted as accurate and which he did not. He submitted that Mr Hall's evidence on the accuracy of particular statements in those documents would be of lower probative value than the direct evidence already given by Raymond J Sailah. Finally, he submitted that a certificate would provide incomplete protection. Mr Hall faces a real risk of proceedings on two fronts: disciplinary action by the Institute of Chartered Accountants, of which he remains a member, and referral to the taxation authorities, a course which the Court has itself foreshadowed.

24 In Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd [No 7] (Timeless),[5] Delany J summarised the relevant principles that had emerged from the cases concerning whether the interests of justice required a witness to give evidence in a proceeding:[6]

The principles that emerge from the cases concerning s 128(4)(b) that I propose to apply ... may be summarised as follows:

(a) what constitutes the interests of justice in s 128(4)(b) is to be construed broadly;[[7]]

(b) it is not enough that the evidence is relevant.[[8]] What must be established is that the interests of justice 'require' the admission of the evidence;[[9]]

(c) what the interests of justice 'require' in a particular case is to be weighed having regard to the proceeding in which the question arises;[[10]]

(d) the requirement to be satisfied, that the interests of justice 'require' that the witness give the evidence, is a relatively high standard which reflects the fact that the provisions of s 128, to a significant extent, impinge a basic and long standing common law right;[[11]]

(e) the significance of the evidence in the case is an important factor in determining whether the interests of justice require that the witness gives that evidence;[[12]]

(f) the factors to be balanced in determining whether the interests of justice 'require' the information to be disclosed are not, and cannot, be prescribed but may include the nature of the information, the likelihood of an offence being prosecuted and any resulting unfairness to a party;[[13]]

(g) it is relevant to consider whether the witness in question is subject to criminal proceedings,[[14]] or whether it is likely that the allegations will be the subject of a criminal investigation with the real prospect that the witness will be charged.[[15]] The question of the seriousness of any such charges[[16]] and also the prospect of disciplinary or similar proceedings are relevant considerations;[[17]]

(h) the 'interests of justice' will permit questions to be put going solely to credit, particularly where credit is important and where the credit of the chief witness on the opposing side is also in issue.[[18]] However the fact that the criteria in s 103 of the Evidence Act concerning credibility evidence is satisfied is not of itself enough to satisfy the relatively high standard of satisfaction which s 128 requires;[[19]]

(i) the availability of other evidence that may tend to prove, to the same or to some other degree, the information the subject of the claim for privilege, may indicate that it is not in the interests of justice that information over which privilege is claimed be disclosed;[[20]] and

(j) it is important to note the protection afforded by the s 128 certificate, albeit imperfect protection as acknowledged in Villan.[[21]]

25 In addition to those matters, Mr Mereine referred to the commentary in Stephen Odgers, Uniform Evidence Law (Odgers)[22] which identifies the following factors which may properly be considered under s 128(4)(b) of the EA:[23]

(a) the importance of the evidence in the proceeding;[[24]]

(b) the likelihood that the evidence will be unreliable even if a certificate is given;[[25]]

(c) if the proceeding is a criminal proceeding - whether the party seeking to adduce the evidence is a defendant or the prosecutor;

(d) whether the witness is a party in the proceedings;[[26]]

(e) the nature of the offence, cause of action or defence alleged in the proceeding;

(f) the nature of the offence or liability to penalty to which the evidence relates;

(g) the likelihood of any proceeding being brought to prosecute the offence or impose the penalty;[[27]]

(h) any resulting unfairness to a party (for example, unfairness arising from the party being forced by tactical considerations to disclose potentially incriminatory conduct which would not be protected by a certificate);[[28]]

(i) the likely effects of requiring the giving of the evidence, and the means available to limit its publication;

(j) whether the substance of the evidence has already been published;

(k) where a charge or charges has/have already been brought arising out of the events to which the evidence relates, whether the charge or charges have been finally dealt with;[[29]]

(l) if the witness is not to be required to give evidence, the way in which the refusal to give evidence is to be approached by the tribunal of fact (accordingly, in a jury trial, the content of anticipated directions to the jury as to how any refusal to give evidence is to be approached).[[30]]

26 Having regard to the matters set out in the cases referred to by Delany J in Timeless as well as the matters set out in Odgers, I am satisfied for the following reasons that the interests of justice require Mr Hall to give the evidence to which objection has been taken.

27 First, and most importantly, I consider that the evidence Mr Hall will give concerning the circumstances in which the particular documents were created and amended, and how the information in those documents was ultimately conveyed to the ATO, to be an important matter in this proceeding. The documents in question, particularly the Commercial Reasons Paper and the response to the ATO's Part IVA Position Paper are not peripheral documents. They go directly to the question of whether the 2007 Agreement was real and pre-existing, or whether it was a construct devised years later to deflect ATO scrutiny. That is a critical factual question in the proceeding.

28 The plaintiffs, in their written and oral opening submissions, relied heavily on various statements made to the ATO contained in these documents that were said to support and corroborate the plaintiffs' case that an agreement was made in or about late June 2007 by which the plaintiffs would acquire an additional 25% of the Norstar business from the Corry defendants.

29 That agreement is referred to in paragraph 28 of the plaintiff's fourth further amended statement of claim (FFASOC) and is alleged to have been made at a meeting in the Norstar boardroom at Laverton attended by Mr Paul Sailah, Mr Raymond J Sailah and Mr Hall in or about late June 2007.

30 In paragraph 30A of the FFASOC, the plaintiffs allege that at the same meeting a related agreement was reached whereby Paul Sailah, Raymond J Sailah, James Sailah and Corry Sailah (each in their capacity as a beneficiary of the SFT) agreed, among other things, that income from, and capital of, the SFT would be received in certain proportions. The particulars to that paragraph identify the response to the ATO's Part IVA Position Paper prepared by Mr Hall and others as recording that agreement.

31 In their defence, the Corry defendants allege that the response to the ATO's Part IVA Position Paper was misleading. That allegation, if accepted, could support the conclusion that the statements in the document do not reflect any genuine pre-existing agreement but were crafted after the fact to serve a different purpose. Mr Hall's evidence about how and why those statements came to be included in the documents, and whether they accurately reflected what he understood to have been agreed in 2007, is critical to the resolution of that question.

32 Although the Commercial Reasons Paper, which the evidence demonstrates was relied upon in the preparation of the response to the ATO's Part IVA Position Paper, is itself not expressly referred to in the pleadings, substantial reference was made to it by the parties in their written and oral opening submissions and it has been referred to on numerous occasions in the cross-examination of other witnesses.

33 Mr Hall is the only witness being called who can give direct evidence, from his own knowledge and participation, about the circumstances in which these documents were created, how they evolved through successive drafts, what he understood them to mean, and whether the representations made in them to the ATO were accurate. The absence of his evidence on these matters would leave a significant and, in my view, unacceptable gap in the evidentiary record on a question that is central to the outcome of the proceeding.

34 Secondly, I am not presently satisfied that the evidence to be given by Mr Hall is likely to be unreliable, even if a certificate is given. The plaintiffs have foreshadowed that they will submit that any evidence given by Mr Hall to the effect that the documents sent to the ATO were misleading is itself false and self-serving. That submission may ultimately prove to be correct, but whether it is correct is precisely the question that his evidence, once given and tested in cross-examination, will assist the Court to resolve. It cannot be a reason to conclude, before that process has occurred, that his evidence is likely to be unreliable.

35 Thirdly, I take into account that Mr Hall is not currently subject to any criminal proceedings arising from the conduct in question. While the possibility of future proceedings cannot be discounted, there is no material before me to suggest that a prosecution is imminent or that charges are likely to be laid. That reduces, although it does not eliminate, the weight to be given to the personal jeopardy Mr Hall faces.

36 Fourthly, I note that the questions that will be put to Mr Hall in respect of the documents in question are not matters that go solely to credit, although credit will necessarily be involved in such questioning. As I have indicated, the evidence will go to a critical matter in the proceeding, namely whether or not the agreements alleged by the plaintiffs were made in or about late June 2007.

37 Fifthly, although there is other evidence available that may tend to prove, to some degree, the information the subject of a claim for privilege, I do not consider that evidence to be of the same character or quality as the evidence that will be adduced directly from Mr Hall under the protection of a s 128 (of the EA) certificate.

38 I acknowledge that the protection afforded by a s 128 certificate is not absolute. Mr Hall faces a number of real risks. His evidence could be used against him in a prosecution for perjury if he gives false evidence, disciplinary proceedings may be brought against him by the Institute of Chartered Accountants and a referral may be made to the taxation authorities. There is also the prospect of public scrutiny and reputational consequences. I do not discount any of those matters. But they do not, in my view, outweigh the compelling public interest in ensuring that all material evidence bearing on a serious commercial dispute of this magnitude is placed before the Court.

39 Weighing all of these considerations, I am firmly of the view that the interests of justice require Mr Hall to give the evidence to which objection has been taken. The evidence bears directly on the central factual issue in the proceeding and cannot adequately be supplied by any other means. That consideration, in my view, decisively tips the balance in favour of requiring Mr Hall to give the evidence, notwithstanding the personal consequences that may follow from him doing so.

40 Accordingly, pursuant to s 128(5) of the EA, I require Mr Hall to give the evidence concerning the circumstances in which the particular documents described above were created and amended and how the information in those documents was ultimately conveyed to the ATO. The Court will give Mr Hall a certificate under s 128 of the EA in respect of that evidence.

41 Consistently with the approach taken in other cases, the certificate will attach the relevant pages of the transcript, when available, so that there can be no doubt as to the evidence it covers.

[1] These reasons have been revised in accordance with the principles expressed in Minister for Immigration Citizenship Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 272 CLR 329, 344-5 [30]-[31] (Steward J for the Court). See also Spencer v Bamber [2012] NSWCA 274, [137] (Campbell JA, Basten JA agreeing at [8] and Macfarlan JA agreeing at [227]).

[2] Court Books filed 23 December 2025, 4 February 2026, 11 February 2026, 24 February 2026, 4 March 2026 4968 (CB).

[5] [2022] VSC 549 (Delany J) (Timeless).

[7] Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, [37] (Sheller JA, with whom Meagher JA and Beazley JA agreed) (citation in original).

[8] Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275, [286] (Bathurst CJ, with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed) (citation in original).

[10] Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1, [41] (Gordon J), citing R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328, [41]-[46] (Whealy J); Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275, [289]-[290] (Bathurst CJ, with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed) and Australian Workers' Union v Registered Organisations Commissioner [No 5] [2019] FCA 188, [16] (Bromberg J) (citation in original).

[11] DPP v Roberts [Ruling No 7] [2022] VSC 60, [18] (Kaye JA) citing Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275, [286] (Bathurst CJ, with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed) (citation in original).

[12] DPP v Roberts [Ruling No 7] [2022] VSC 60, [18] (Kaye JA), citing R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328, [41] (Whealy J) (citation in original).

[13] Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1, [41] (Gordon J) (citation in original).

[14] DPP v Roberts [Ruling No 7] [2022] VSC 60, [18] (Kaye JA), citing X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, [71], [124] (Hayne and Bell JJ) (citation in original).

[15] Villan v State of Victoria [2021] VSC 354, [26], [31] (Keogh J) (citation in original).

[16] DPP v Roberts [Ruling No 7] [2022] VSC 60, [18] (Kaye JA), citing R v Lodhi [2006] NSWSC 638, (2006) 199 FLR 328, [47] (Whealy J) (citation in original).

[17] R v Lodhi [2006] NSWSC 638, (2006) 199 FLR 328, [55] (Whealy J) (citation in original).

[18] Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, [37] (Sheller JA, with whom Meagher JA and Beazley JA agreed) (citation in original).

[19] Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275, [286] (Bathurst CJ, with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed) (citation in original).

[20] Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1, [43] (Gordon J) (citation in original).

[21] Villan v State of Victoria [2021] VSC 354, [16]-[18] (Keogh J) (citation in original).

[22] Stephen Odgers, Uniform Evidence Law (Thomas Reuters, 20th ed, 2025) (Odgers).

[24] R v Lodhi (2006) 199 FLR 328; [2006] NSWSC 638, [41]-[46]; Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257, [289]-[290]; Lunt v Victoria International Container Terminal Ltd [No 1] [2019] FCA 467, [14]. In Turco v HP Mercantile Pty Ltd [No 2] [2009] NSWCA 209, two members of the NSW Court of Appeal held that one reason that it was not in the interests of justice to require a witness to give evidence on the appeal was because, even if accepted, the evidence would not justify allowing the appeal: Hodgson JA, [24]-[25], Campbell JA, [30]. A related consideration is the availability of other evidence: Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696, [33]; Australian Workers' Union v Registered Organisations Commissioner [No 7] [2019] FCA 195, [26] (citation in original).

[25] Compare R v Collisson (2003) 139 A Crim R 389; [2003] NSWCCA 212; Turco v HP Mercantile Pty Ltd [No 2] [2009] NSWCA 209, [19]-[23], [27]-[28], [30] (citation in original).

[26] Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd [No 7] [2022] VSC 549, [149]-[152] (citation in original).

[27] See R v Simmons [No 6] [2015] NSWSC 418, [18], [40]; Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd [No 7] [2022] VSC 549, [68], [171] (citation in original).

[28] R v Lodhi (2006) 199 FLR 328; [2006] NSWSC 638, [36]; Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257, [292] (citation in original).

[29] Cf R v Collisson (2003) 139 A Crim R 389; [2003] NSWCCA 212 (citation in original).

[30] Cf R v Hore [2005] NSWCCA 3, [218]-[219]); see also [Odgers] [EA.128.690] (citation in original).