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[2026] NSWCA 191
respondent. The application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the first and second respondents.
The Court of Appeal did not decide whether the second respondent's affidavits could ultimately be admitted or what weight they should receive. It decided that an appeal was too early. The affidavits had not yet been put into evidence, the hearing had not concluded, and the primary judge could reconsider the ruling if the circumstances changed. The Court also found no issue of principle or public importance and no established error in the primary judge's exercise of discretion.
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2,782 words · generated 08/10/2026
This judgment concerns an interlocutory evidence-management decision in ongoing Supreme Court proceedings about land at Anambah in the Hunter Valley. The applicant, Gillian Mary McCall, alleged that she paid the full purchase price and associated charges for the property, but that changes made to the contract without her fully informed consent resulted in her and SMRT Log Pty Ltd becoming co-owners as tenants in common. Her case, as summarised by the Court, included allegations that SMRT Log and its associated second respondent, Achilles Constantinidis, dishonestly or improperly diverted a 50% interest in the land [4]. These were allegations in the underlying case, not findings made by the Court of Appeal.
6 cited instruments linked from this judgment.
The first and second respondents applied to vacate the hearing date as between them and McCall. In the alternative, they sought permission to rely on Constantinidis’s affidavits without making him available for cross-examination, and sought to have him excused from attending the hearing [7]. They relied on letters from a general practitioner and a specialist describing serious medical conditions that might be exacerbated by cross-examination [8].
Bennett J permitted use of the affidavits notwithstanding Constantinidis’s non-attendance for cross-examination, excused him from attending, and otherwise dismissed the motion with costs reserved [2], [20]. McCall sought leave to appeal those orders. Leave was required because the challenged decision was interlocutory: s 101(2)(e) of the Supreme Court Act 1970 (NSW), as identified at [2].
By the time the Court of Appeal heard the leave application, the underlying hearing had begun and had run for eight days. It was adjourned part-heard on 12 June 2026. McCall had been cross-examined for about four days, including on Constantinidis’s account of events. But the first and second respondents had not yet sought to read or tender his affidavits [16]. The resumed hearing was listed for 10 days beginning on 12 April 2027 [16].
The Court dismissed the application for leave and ordered McCall to pay the costs of the first and second respondents [30]. It did not determine whether the affidavits would ultimately be admissible, what weight they might receive, or whether the order would have practical effect at the resumed hearing.
The Court began from the established approach to leave to appeal. Although applicants commonly need to show an issue of principle, a question of public importance, or reasonably clear injustice beyond something merely arguable, those matters do not exhaust the inquiry. The controlling question is whether leave is in the interests of justice [17]. The Court also noted that appellate courts are generally reluctant to grant leave on interlocutory questions of practice and procedure. Such an order can often be challenged in an appeal from final judgment if it affects the result [18].
The applicant accepted that the primary judge had exercised a discretion. The proposed appeal therefore required an error of the kind described by House v The King [22]. The Court found that the application raised no issue of principle or public importance. McCall was not challenging the primary judge’s construction of the word “used” in UCPR r 35.2(3), or asking the Court to determine how that rule interacted with the Evidence Act 1995 (NSW). Her case was, in substance, that the primary judge had reached the wrong result on the facts of this particular case [23].
One ground was that the primary judge failed to take account of Constantinidis’s centrality to the parties’ cases. The Court rejected that argument because the primary judge had expressly recognised that he was a key participant, that his evidence about disputed conversations was relevant and critical, and that there would be important credit issues [13], [24]. The complaint was really that the judge gave that consideration insufficient weight. The Court held that this did not establish House v The King error [24].
A second ground concerned cross-examination by audio-visual link. McCall argued that the primary judge had considered audio-visual link mainly when discussing demeanour, without addressing more broadly whether it could accommodate both the witness’s medical needs and the other parties’ interest in cross-examination [25]. The Court accepted that the medical letters did not expressly address whether Constantinidis could participate in that way [25].
However, that point did not alter the outcome. The Court cautioned against examining an ex tempore judgment too minutely, particularly where reasons had been delivered quickly after a late-afternoon hearing [26]. It also explained that the forensic value of cross-examination is not confined to assessing demeanour. A witness may make concessions about memory, provide context, respond to other evidence, or otherwise affect the assessment of the evidence [26]. The Court did not definitively resolve whether the primary judge had concluded that any cross-examination would be too detrimental. It considered that the uncertainty did not overcome the application’s central defect: prematurity [27]-[28].
The third ground alleged that the decision was plainly unjust because McCall could not cross-examine Constantinidis about contested conversations. The Court considered that claim premature for several linked reasons [28]. The affidavits had not yet been read or tendered. There had been no final ruling on all questions of admissibility. The Court did not know what weight the primary judge would give the affidavits, if any. Nor did the fact that McCall had been cross-examined using Constantinidis’s account mean that the judge would accept that account [28].
The medical and procedural circumstances could also change before the affidavits were relied on. The ruling had been made in May 2026, but the resumed hearing was not scheduled until April 2027. The Court said an interlocutory decision can be revisited if circumstances change, citing Proietti v Proietti and Moore (a pseudonym) v The King [28]. It noted that the GP’s letter described Constantinidis as “currently” medically unfit and said that this condition was likely to continue for “at least the next six months”. The Court considered that updated medical evidence would likely address expressly whether home-based audio-visual link cross-examination was possible [28].
The decisive reasoning was therefore procedural rather than a final determination of the competing evidentiary rights. The Court declined to review the order before its practical effect was known. If the ruling ultimately affected the final judgment, it could be challenged in an appeal from that judgment [29]-[30].
The judgment presents the approach to interlocutory leave applications as an application of existing principles, rather than announcing a new test. Before this decision, the relevant framework included the interests-of-justice inquiry summarised in Mohareb v Local Court of New South Wales [17], the general reluctance to grant leave on interlocutory procedural matters [18], and the possibility of challenging an interlocutory ruling in an appeal from final judgment where it affects the outcome [18].
For discretionary decisions, the applicant accepted that the proposed appeal had to establish House v The King error [22]. The Court’s treatment of the “central witness” ground reinforces a distinction between failing to consider a material matter and considering it but assigning it less weight than a party would prefer. The judgment says that the latter complaint did not establish the required error on these facts [24].
The judgment also describes UCPR r 35.2(3), which provides that where reasonable notice has been given requiring a deponent to attend for cross-examination, an affidavit cannot be used if the deponent does not attend, unless the deponent is dead or the court orders otherwise [11]. The Court did not settle the relationship between the rule and s 63 of the Evidence Act. It noted that the respondents’ position about how they would use the affidavit was unclear, and that a later hearsay tender might raise questions about whether Constantinidis was unavailable under the Evidence Act [12], [28]-[29].
The decision’s practical contribution is its application of prematurity to this particular procedural setting. It shows that a court may decline leave where the affidavit has not yet been tendered, its admissibility and weight remain undecided, the witness’s condition may change, and the primary judge can reconsider the order. It does not establish that medical unavailability always justifies dispensing with cross-examination, nor does it finally determine how an affidavit may be admitted under either UCPR r 35.2(3) or Evidence Act s 63.
After this decision, as far as the supplied judgment shows, the order permitting use of the affidavits remained in place at the time leave was refused. But the Court expressly left open whether the order would later matter in practice and whether it could be revisited. The judgment therefore records no final resolution of admissibility, weight, or the application of the hearsay provisions to the affidavits.
At [17], the Court states: “The ultimate issue is whether granting leave is in the interests of justice.” In plain English, the listed considerations such as public importance or reasonably clear injustice are guides, not a closed checklist. The Court must assess whether an appeal should proceed in the circumstances as a whole.
At [18], the Court explains that appeals from interlocutory procedural decisions will rarely be in the interests of justice. One reason is that an affected party can generally challenge the ruling after final judgment if the ruling has influenced the result. This does not mean interlocutory appeals are impossible: the Court acknowledged that exceptions may arise [18].
At [21], the Court states: “Orders without effect should not be made.” The order excusing Constantinidis from attending had no legal effect because a civil litigant was not obliged to attend the hearing. The respondents’ solicitor said the order was intended to make clear that his absence was not discourteous. The Court treated the substantive challenge as being directed to the separate order allowing use of the affidavits without cross-examination [21].
At [24], the Court says that a complaint about insufficient weight is not, by itself, House v The King error. The primary judge had expressly recognised the importance of Constantinidis’s evidence. The issue was not that she overlooked his centrality, but that McCall disagreed with the balance she struck [24].
At [26], the Court explains that cross-examination can be useful even apart from demeanour. Questions may expose limits in memory, elicit context or concessions, test a witness against other evidence, and shed light on other evidence. The passage makes clear that the Court did not treat demeanour as the only reason for cross-examination.
At [28], the Court calls prematurity the “core problem” with the application. In plain English, the Court considered it too early to decide whether the order caused serious prejudice because the affidavits had not yet been used in evidence, the judge had not ruled on their ultimate admissibility or weight, and the medical position could change.
At [29], the Court says that if the ruling ultimately has practical significance, it can be challenged in an appeal from the final judgment. That passage captures the procedural logic of the result: defer appellate review until the evidentiary ruling has a concrete effect, if it ever does.
The reasoning is most directly relevant where a party seeks leave to appeal an interlocutory procedural order, but the challenged ruling has not yet affected the final result. The features that mattered here were that the affidavit had not been read or tendered, the court had not determined its final admissibility or weight, and the resumed hearing was months away [16], [28].
The decision also speaks to disputes involving a witness whose medical condition is said to prevent or limit participation in cross-examination. The judgment does not create a general rule that medical evidence is enough to dispense with cross-examination. Rather, it records the primary judge’s balancing of the relevant considerations, then refuses leave because the evidence had not yet been used and circumstances could change [13]-[14], [28].
A further relevant feature is the availability of a potentially less restrictive procedure, here cross-examination by audio-visual link. The Court noted that the medical letters did not address that possibility in terms and that updated evidence could do so [25], [28]. It did not itself decide whether audio-visual link cross-examination would be medically safe or practically adequate.
The judgment may also be relevant where a party alleges that the trial judge failed to consider a factor, but the reasons show that the factor was considered and the real complaint is about the weight assigned to it. The Court’s treatment of the second respondent’s importance illustrates why those are distinct complaints [24].
It is less directly determinative where a court has already admitted the evidence, assigned it significant weight, or relied on it in reaching final judgment. The Court expressly left those matters unresolved [28]-[29]. A case with a completed evidentiary ruling or final judgment would therefore require analysis of the later procedural record and the authorities applicable to that posture.
The supplied judgment does not cite any decisions that post-date it or describe later judicial treatment of McCall v SMRT Log Pty Ltd. The decision is dated 15 September 2026, and the text provided contains no subsequent citing history. It would therefore be unsupported to say whether later courts have followed, distinguished, or limited it.
The judgment itself relies on earlier authorities. It refers to Mohareb for the principles governing leave to appeal [17], and to Gerlach v Clifton Bricks Pty Ltd and Michael Wilson & Partners Limited v Nicholls for the general point that interlocutory orders affecting the final result can commonly be challenged after final judgment [18]. It refers to Fred Caterson Champions as an example of an exception where leave may be appropriate in particular circumstances [18].
On the evidence issues, the Court refers to Protective Commissioner v B, Su v Chang and Chang v Su when discussing the distinction between reliance on an affidavit under the procedural rule and tendering it as hearsay under the Evidence Act [12]. It also cites Fox v Percy in discussing the limits of demeanour-based assessment [26]. For the possibility of revisiting an interlocutory decision when circumstances change, it cites Proietti and Moore [28].
Those references establish the authorities the Court considered relevant; they do not establish how subsequent courts have treated this judgment. The judgment’s own stated holding is narrow: leave was refused because this particular application raised no issue of principle or public importance and was premature on the procedural record then before the Court [23], [28]-[30].
The first open question is whether, and on what basis, Constantinidis’s affidavits would ultimately be used. The Court observed that the respondents’ position was unclear: they might seek to rely on the affidavits as evidence under the procedural rule, seek to tender them as hearsay under s 63 of the Evidence Act, or preserve both possibilities [12]. The Court did not decide which approach was available.
The second is how UCPR r 35.2(3) interacts with s 63 of the Evidence Act in the circumstances of the underlying case. The applicant did not seek leave to challenge the primary judge’s construction of “used” or raise the interaction between the two provisions as an issue of principle [23]. The Court expressly noted that those matters might arise when the respondents sought to read or tender the affidavits [28]-[29].
The third is whether the medical evidence would support non-availability for the purpose of the Evidence Act. The Dictionary to that Act, as described in the judgment, provides that a person is taken not to be available to give evidence if, among other things, they are mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability [12]. The Court did not decide whether that test was met. It noted that Constantinidis’s condition and ability to participate could be assessed using updated evidence closer to the resumed hearing [28].
The fourth is whether cross-examination by audio-visual link would be practicable and medically appropriate. The medical letters did not address that issue expressly, and the Court anticipated that updated medical evidence would likely do so if the issue were raised again [25], [28]. No finding was made that such cross-examination was possible or impossible.
Finally, it remained unknown what evidentiary weight the primary judge would place on any affidavits, if admitted. The judgment stressed that the applicant’s cross-examination using Constantinidis’s version of events did not mean the judge would accept that version [28]. The Court left the trial judge to determine the evidentiary issues in the first instance, with any eventual appellate challenge depending on the final ruling and its effect on the judgment [29].
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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: McCall v SMRT Log Pty Ltd [2026] NSWCA 191
Hearing dates: 9 September 2026
Date of orders: 15 September 2026
Decision date: 15 September 2026
Before: Kirk and Free JJA at [1]
Decision: (1) The application for leave to appeal is dismissed.
(2) The applicant is to pay the costs of the first and second respondents.
Catchwords: CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal against interlocutory judgment or order — second respondent significantly ill — participation in court proceedings likely to aggravate medical conditions — primary judge made order under UCPR r 35.2(3) entitling parties to rely on second respondent’s affidavit without him being available for cross-examination — hearing adjourned until April 2027 and affidavit not yet read or tendered — applicant sought leave to appeal against order — no issue of principle — primary judge adequately considered alternative of cross-examination via audio-visual link — application premature in circumstances
Legislation Cited: Civil Procedure Act 2005 (NSW), s 62(3)(a)
Evidence Act 1995 (NSW), s 63, Dictionary
Uniform Civil Procedure Rules 2005 (NSW), r 35.2(3)
Cases Cited: Chang v Su [2002] FamCA 156; (2002) 170 FLR 244
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Fred Caterson Champions Inc trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2026] NSWCA 24
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Maviglia v Maviglia [1999] NSWCA 188
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30
Proietti v Proietti [2025] NSWCA 11
Protective Commissioner v B (Hodgson J, unreported, 23 June 1997, BC9702917
Su v Chang [1999] FamCA 1203
Category: Principal judgment
Parties: Gillian Mary McCall (Applicant)
SMRT Log Pty Ltd (First respondent)
Achilles Constantinidis (Second respondent)
JT Law Pty Ltd t/as Tomaras Lawyers (Third respondent)
John Tomaras (Fourth respondent)
Andrew Fulton Rofe (Fifth respondent)
Representation: Counsel:
AJ Bulley (Applicant)
P Beazley (sol) (First and second respondents)
Solicitors:
Konstan Lawyers (Applicant)
Beazley Lawyers (First and second respondents)
Bowles Lawyers (Fifth respondent)
File Number(s): 2026/220125
Publication restriction: Nil
THE COURT: This application for leave to appeal arises out of ongoing proceedings in the Supreme Court concerning disputes relating to the purchase and occupancy of a parcel of land at Anambah in the Hunter Valley. The applicant, Ms Gillian McCall, is the plaintiff in the proceedings below. There are five respondents. The first and second respondents, SMRT Log Pty Ltd and Mr Achilles Constantinidis, are the first and second defendants below. They filed a notice of motion in the Court below seeking either that an upcoming hearing date be vacated as between them and the applicant or, in the alternative, that they be permitted to rely at the hearing on an affidavit of the second respondent without the other parties being permitted to require him for cross-examination; and, further, that he “be excused from attending the hearing”.
The primary judge, Bennett J, made orders permitting the use of the affidavits without cross-examination of the second respondent, excusing him from attending the hearing, and otherwise dismissing the notice of motion with costs reserved: McCall v SMRT Log Pty Ltd [2026] NSWSC 575. The applicant seeks leave to appeal from that decision. Leave is required to appeal against an interlocutory judgment or order: Supreme Court Act 1970 (NSW), s 101(2)(e). The third and fourth respondents did not appear. The fifth respondent, Mr Andrew Rofe, filed a submitting appearance.
The application for leave to appeal is refused with costs. We first set out the background to the application ([4]-[16]) before identifying the relevant principles ([17]-[19]) and considering their application to the present matter ([20]-[30]).
The applicant, who is now in her early 80s, was one of two purchasers of a parcel of land at Anambah. She alleges that the second respondent provided accounting and financial advice regarding the purchase. She claims she paid the full purchase price and associated charges for the purchase but, as a result of changes made to the contract without her fully informed consent, she and the first respondent (being the second respondent’s company) jointly purchased the land and became co-owners as tenants in common. The applicant advances a number of alternative causes of action in relation to what appears to be, in essence, an allegation that the first and second respondents dishonestly or improperly diverted a 50% interest in the land.
The applicant also sought relief in relation to the third and fourth respondents, being a law firm and lawyer who acted for her on the transaction. On 5 June 2026 orders were made in the Court below by consent, dismissing proceedings against the third respondent and entering judgment in favour of the fourth respondent.
The fifth respondent is said to be an occupier of the land whom the applicant claims owes her money. He has filed a responsive cross-claim against her.
The proceedings had been set down for a 10 day hearing commencing on 1 June 2026 before the primary judge. On 15 May 2026 the first and second respondents filed a notice of motion relevantly seeking the following orders:
2. That the hearing as between the Plaintiff and the First and Second Defendant be vacated.
3. The matter be listed for allocation of a hearing date in 12 months time.
4. In the alternative, the First and Second Defendants be at liberty to rely at the hearing on the affidavits of Achilles Constantinidis filed in these proceedings without cross examination and that he be excused from attending the hearing.
The notice of motion was heard on 21 May 2026. The first and second respondents relied on two letters from medical practitioners (a GP and a specialist), the effect of which was that the second respondent suffered from a variety of serious medical conditions which may be exacerbated if he were cross-examined. The medical practitioners were not cross-examined.
The primary judge said three issues required determination (at [21]):
(1) First, could the plaintiff's claim against the Solicitors be heard separately from and before her claims against the other parties as well as the fifth defendant's cross-claim?
(2) Second, should the first and second defendants be permitted to use the affidavits of the second defendant notwithstanding his unavailability for cross-examination?
(3) Third, should the hearing as a whole be vacated?
The first issue was relevant because the primary relief sought in the motion was that the hearing “between” the applicant and first and second respondents be vacated. Implicit in this application was the premise that the issues between those parties could be determined separately from those involving the other parties. Her Honour held that it was not appropriate for any claims in the main proceedings to be determined separately from each other.
In relation to the second issue – which is the subject of this application for leave to appeal – her Honour considered that she was being asked to exercise the power in r 35.2(3) of the Uniform Civil Procedure Rules 2005 (NSW). The rule provides:
35.2 Cross-examination of deponent
(1) A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made.
(2) Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination.
(3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.
(4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.
Her Honour concluded that the word “used” in r 35.2(3) refers to a party being entitled to seek to rely on the relevant affidavit, and does not affect any subsequent assessment of its admissibility (at [51]-[53]). We note that, in possible tension with this approach, the solicitor appearing for the first and second respondents submitted in this Court – as he had below – that, rather than reading the affidavit as direct evidence of the deponent, he would be seeking to tender the affidavit in the proceedings in due course as an admissible form of hearsay, on the basis that the second respondent was not available to give evidence within the meaning of s 63 of the Evidence Act 1995 (NSW): as to the distinction between these two approaches, see Protective Commissioner v B (Hodgson J, unreported, 23 June 1997, BC9702917); Su v Chang [1999] FamCA 1203 at [75]-[81]; Chang v Su [2002] FamCA 156; (2002) 170 FLR 244 at [34]-[56]. It seemed that that was the provision he was seeking to invoke, although his position was not very clear. An alternative interpretation is that the first and second respondents are seeking to keep open both potential uses of the affidavit. Pursuant to cl 4(1) of Pt 2 of the Dictionary in the Evidence Act, a person is taken not to be available to give evidence if, amongst other things, they are dead or “mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability”.
Her Honour then turned to consider whether to “order otherwise” pursuant to r 35.2(3) in respect of the affidavit evidence of the second respondent. Her Honour stated that she “readily accept[ed] that the second [respondent] is a key player in these proceedings” and that “[h]is evidence in relation to disputed conversations will certainly be relevant and critical” (at [54]). She also accepted that there would be important issues regarding the second respondent’s credit (at [55]). Her Honour observed, however, that these were not the only relevant considerations. Her Honour considered it “not seriously in dispute that the second [respondent] is significantly ill”, with “severe chronic illnesses and … physical symptoms”, along with “psychological distress” (at [63]). She did not consider that his psychological symptoms were merely because of the proceedings (at [64]).
Her Honour stated that it was not clear that there would be much forensic value in questions of demeanour in cross-examination, referring to difficulties she perceived there would be in making demeanour-based findings from watching a witness – whether in the box or by audio-visual link (AVL) – who is significantly unwell (at [65]). Additionally, her Honour was not convinced that questioning such a witness, who would require frequent breaks and accommodations, would “yield much in the way of answers to questions” (ibid). She noted that it is not an immutable requirement of procedural fairness that a party be able to cross-examine a witness, even if their evidence is central to the proceedings (at [67]). While acknowledging the prejudice to the applicant and fifth respondent that would arise from making the order sought pursuant to r 35.2(3), her Honour determined that the interests of justice favoured making the orders (at [66]-[69]).
Principles relevant to the grant of leave to appeal were summarised in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[34]. It has frequently been observed that in general an applicant must establish that the proposed appeal involves an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. But that is not an exhaustive statement of the relevant considerations. The ultimate issue is whether granting leave is in the interests of justice: ibid at [26].
It is in that context that this Court is disinclined to grant leave on interlocutory matters of practice and procedure. Doing so will rarely be in the interests of justice. That is so for a number of reasons. One such reason is that in general any interlocutory order which affects the final result can be challenged in an appeal against final judgment: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6]-[8]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78]. There may, of course, be exceptions where in the particular circumstances a grant of leave is appropriate: see, eg, Fred Caterson Champions Inc trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2026] NSWCA 24.
The first and second respondents submitted that the primary judge’s decision does not constitute an interlocutory judgment or order in the relevant sense, meaning there is nothing from which to appeal. There is no need to consider that submission given our reasons below.
(1) Pursuant to rule 35.2(3) of the Uniform Civil Procedure Rules 2005, the first and second defendants are permitted to use any affidavits of the second defendant, notwithstanding he will not be attending for cross-examination.
(2) The second defendant is excused from attending the hearing.
Order 2 has no legal effect. The solicitor appearing for the first and second respondents before us conceded as much. A party in civil litigation is not obliged to attend a hearing. The solicitor said that the order had been sought so as to make clear that the second respondent’s non-attendance was not discourteous. Orders without effect should not be made. In any event the applicant’s challenge was addressed in substance to order 1.
The applicant accepted that order 1 was made in exercise of a discretion, and thus on appeal it would be necessary to establish House v The King error.
The application does not raise any issues of principle or public importance. The applicant does not seek leave to challenge, for example, the primary judge’s construction of the word “used” in r 35.2(3). Nor is any issue raised as to how that rule interacts with the Evidence Act. In substance, she only challenges the primary judge’s determination on the facts of this particular case. So much is implicit in the submission of counsel for the applicant that “the issue of principle is the way in which the court ought exercise its discretion to otherwise order for the purpose of r 35.2”. The applicant’s main focus was in seeking to establish that there was a reasonably clear injustice going beyond something that is merely arguable.
The applicant raised three points in her summary of argument. The first was that the primary judge did not take into account the material consideration that the second respondent is central to all parties’ cases. The submission is without merit. As noted above, her Honour expressly referred to and accepted submissions to this effect at [54] and [66] of her judgment. The applicant’s real complaint on this front is that her Honour gave insufficient weight to this consideration. That is not House v The King error.
The second point was that the primary judge referred to the option of the second respondent giving evidence by AVL in the context of discussing whether demeanour could be assessed over AVL, but left unaddressed counsel’s broader submission about AVL being an appropriate alternative option to meet the competing needs of all parties. The applicant submitted, correctly, that the letters from the two medical practitioners did not address in terms whether or not the second respondent could participate in the hearing in that manner.
Her Honour did give particular emphasis to issues of demeanour in apparent answer to the possibility of using AVL (at [65]). However, it is relevant to note that her Honour’s reasons were delivered very quickly, the day after a late afternoon hearing. Just as ex tempore judgments should not be “picked over” for errors (Maviglia v Maviglia [1999] NSWCA 188 at [1]), the primary judge’s reasons here should not be scrutinised over-zealously. Her Honour also said that “even if issues of demeanour are set to one side” the forensic value of “stop-start cross-examination” was open to doubt. In context her Honour cannot be taken to have been suggesting that assessing demeanour is the main point of cross-examination, generally or as regards credit, especially given the well-known limits of doing so: note (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31]. Regardless of demeanour, a witness such as the second respondent might make concessions in cross-examination as to the strength of their memory, or contextual matters they have not mentioned, or other factual possibilities, or error when confronted with other evidence. Even in the absence of concessions the responses given by a witness under cross-examination may prove relevant, including because of the light shed on other evidence.
**********
McCall
SMRT Log Pty Ltd
[2003] HCA 22
[2011] HCA 48
[1999] FamCA 1203
[2026] NSWSC 575
(2002) 170 FLR 244
(2003) 214 CLR 118
(2002) 209 CLR 478
(2011) 244 CLR 427
(2024) 282 CLR 460
The application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the first and second respondents.
Her Honour then considered the third question. She declined to vacate the whole hearing. She held that costs should be reserved.
The proceedings were listed for hearing commencing on 1 June 2026. The hearing occurred over eight days before the matter was adjourned part heard on 12 June 2026. The applicant is still under cross-examination, which we were informed had occurred over some four days. She has been cross-examined on the contents of the second respondent’s affidavit evidence. We understand that no application has yet been made to limit the length of the cross-examination pursuant to s 62(3)(a) of the Civil Procedure Act 2005 (NSW). The first and second respondents have not yet sought to tender or read affidavits of the second respondent. The proceedings are now listed for a further 10 days commencing on 12 April 2027.
It may be that her Honour considered that even apart from the second respondent’s physical restrictions, the physical and psychological effects on him of any cross-examination would be so detrimental as not to be warranted. It can be accepted, however, that it is not entirely clear whether her Honour did reach that conclusion. Regardless, the applicant’s second point should ultimately be rejected for the same reason as her third point.
That third point was that the decision is “plainly unjust” because the inability to cross-examine the second respondent about contested conversations is “incurably prejudicial”. This complaint illustrates the core problem with the application as a whole – it is premature:
The first and second respondents have not yet sought to read or tender any affidavits of the second respondent. If and when they do so, at the resumed hearing in April next year, issues about the interaction between r 35.2(3) and s 63 of the Evidence Act may be addressed in a way that has not yet occurred. Further, it is possible that by that time the second respondent’s health will have deteriorated to such an extent that he is unavailable on any view.
We do not know what other rulings on the admissibility of the affidavits may be made.
We do not know what, if any, weight the primary judge will place on the affidavits. The fact that the applicant has been cross-examined by reference to the second respondent’s version of events does not mean that the primary judge will place any weight on that version.
The ruling can be revisited. It was made on 22 May 2026. The occasion for the first and second respondents seeking to read or tender the affidavit will, in the event, now not arise until some eleven months later. An interlocutory decision can be revisited if circumstances change: see Proietti v Proietti [2025] NSWCA 11 at [21]; Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30 at [26]. Even accepting that the second respondent’s conditions appear to be chronic, that does not mean that the position in April 2027 will be the same. In the current context it seems likely that the passage of 11 months would itself be a change of circumstances. It will thus be open to the applicant to seek that the primary judge overturn her ruling – even assuming that the first and second respondents do not themselves effectively re-raise the issue in the context of an argument under s 63 of the Evidence Act. If such an application were made by the applicant, it is practically inevitable that the first and second respondents would provide updated medical evidence. After all, the letter from the GP only said that the second respondent “is currently” medically unfit to participate in court proceedings, and will likely remain so for “at least the next six months”. Given the issues raised here, that further evidence would no doubt address in terms whether the second respondent was able to be cross-examined at home by AVL, and if not why not.
The applicant’s written submissions in reply themselves reflected the prematurity of the application. She submitted that the application presents a question of principle and/or public importance in “the manner in which a court treats, and deals with, the affidavit of a deponent who does not attend a hearing for cross-examination, particularly in the context of an affidavit which contains conversations which are contested”. That is a question of how the evidence will be used. The answer to that question currently is unknown. If and when her Honour’s ruling under r 35.2(3) ultimately proves to have any practical significance then it can be challenged in any appeal from her Honour’s final judgment determining the dispute.
In sum, no issue of principle or public importance is raised by the application. Beyond that, it is not in the interests of justice to grant leave to appeal as the application is premature. Leave to appeal should be refused. The applicant accepted that costs should follow the event.