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[2026] NSWSC 575
Supreme Court of NSW
2026-05-22
Bennett J
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] NSWSC 575
Hearing dates: 21 May 2026
Date of orders: 22 May 2026
Decision date: 22 May 2026
Jurisdiction: Equity
Before: Bennett J
Decision: (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.
(3) The Notice of Motion filed by the first and second defendants on 15 May 2026 is otherwise dismissed.
(4) The costs of the Notice of Motion are reserved.
Original judgment source is linked above.
Catchwords: CIVIL PROCEDURE — Separate determination of questions — Application by first and second defendants for claims by plaintiff against them to be determined separately from all other issues — Evidence that second defendant is chronically ill and is experiencing severe physical and significant psychological symptoms — Suggestion that plaintiff’s claims against only two of the five defendants, third and fourth defendants, can be heard — Whether in the interests of justice to sever plaintiff’s claim against first and second defendants from the remainder of the proceedings — No issue of principle
EVIDENCE — Affidavit evidence — Application by first and second defendants to use affidavit evidence without second defendant being present for cross-examination — Evidence that second defendant is chronically ill and is experiencing severe physical and significant psychological symptoms — Whether the first and second defendants should be permitted to use the second defendant’s affidavit evidence without being present for cross-examination — Consideration of scope of r 35.2 of the Uniform Civil Procedure Rules 2005 (NSW) and its interaction with the hearsay rule in the Evidence Act 1995 (NSW)
CIVIL PROCEDURE — Hearings — Adjournment — Application to vacate two-week trial in light of the inability to cross-examine a defendant — Where that defendant’s evidence is important to the real issues in dispute — No issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Evidence Act 1995 (NSW), ss 63, 64, 67, 192A
Uniform Civil Procedure Rules 2005 (NSW), rr 10.2, 31.5, 35.2, 42.7
Cases Cited: CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580
Saravinovska v Saravinovski (No 5) [2015] NSWSC 128
Category: Procedural rulings
Parties: Gillian McCall (Plaintiff/Cross-Defendant)
SMRT Log Pty Ltd (First Defendant)
Achilles Constantinidis (Second Defendant)
JT Law Pty Ltd (Third Defendant)
John Tomaras (Fourth Defendant)
Andrew Fulton Rofe (Fifth Defendant/Cross-Claimant)
Representation: Counsel:
A Bulley / MJ Donohue (Plaintiff/Cross-Defendant)
P Beazley (solicitor) (First and Second Defendants)
ME Hall (Third and Fourth Defendants)
E Glover (Fifth Defendant/Cross-Claimant)
Solicitors:
J S Pinto & Co (Plaintiff)
Beazley Lawyers (First and Second Defendants)
Mills Oakley (Third and Fourth Defendants)
Bowles Lawyers (Fifth Defendant/Cross-Claimant)
File Number(s): 2021/00348887
Publication restriction: Nil
These proceedings are set down for hearing before me on an estimate of 10 days, commencing 1 June 2026. The hearing was set down before me by Justice Hammerschlag, the Chief Judge in Equity, on 12 September 2025.
On 14 May 2026, the solicitor for the first and second defendants, Mr Phillip Beazley, emailed to my Chambers an unfiled Notice of Motion and an affidavit made by Mr Beazley on the same day. By this Notice of Motion, which was ultimately filed on 15 May 2026, the first and second defendants sought the following relief:
an order that the hearing **“**as between the Plaintiff and the First and Second Defendant be vacated”, with a consequential order re-listing the matter **“**in 12 months time”; or
in the alternative, an order that 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”.
Mr Constantinidis is the second defendant in these proceedings.
I caused my Associate to email the legal representatives for the other parties on the afternoon of 14 May 2026 seeking the views of the other parties to the proceedings in relation to the application that was put by the first and second defendants. By emails sent later that day and early the next morning:
the solicitors for the third and fourth defendants indicated their clients opposed the vacation of the hearing, but did not oppose or consent to the alternative relief sought; and
the solicitor for the fifth defendant indicated that his client opposed the relief sought in the Notice of Motion and consented to the vacation of the hearing in its entirety.
Albeit without having heard from the plaintiff, I caused my Associate to email the parties that I considered it appropriate to convene an oral hearing of this application in the following week, particularly given the trial date was looming. I listed the matter for hearing the following Thursday afternoon, 21 May 2026 at 4:15pm. I also made directions providing for a short timetable whereby the parties would provide to each other and to the Court written submissions by 4:00pm on Tuesday, 19 May 2026 (two days before the hearing of the motion), and any submissions in reply by 4:00pm on Wednesday, 20 May 2026 (the day before the hearing of the motion). I note that I foreshadowed these directions to the parties before I made formally made them.
In advance of the oral hearing of the motion, I received:
from the plaintiff: written submissions in chief dated 19 May 2026 and written submissions in reply dated 20 May 2026;
from the first and second defendants: written submissions in chief (and also apparently **“**in reply”) dated 19 May 2026;
from the third and fourth defendants: written submissions in chief dated 19 May 2026 and written submissions in reply dated 20 May 2026; and
from the fifth defendant: written submissions in chief dated 19 May 2026.
At the oral hearing of the motion on 21 May 2026:
Mr A Bulley of counsel appeared with Mr M Donohue of counsel for the plaintiff;
Mr P Beazley, solicitor, appeared for the first and second defendants who are the applicants here;
Ms M Hall of counsel appeared for third and fourth defendants;
Ms E Glover of counsel appeared for the fifth defendant.
I have had read and had regard to all of these submissions, as well as the oral submissions of the parties which were made at the oral hearing of the motion.
I acknowledge the short time the parties will have had to prepare for the necessarily urgent hearing of this motion.
In the circumstances, given the looming hearing, I have determined it would be best to give my reasons as expeditiously as possible. I will refer to the parties’ submissions in a more summary fashion than I might otherwise have and only to the extent necessary to deal with the first and second defendants’ motion.
For the reasons which follow:
the hearing will not be vacated and will proceed in relation to all claims for relief; and
the first and second defendants will be permitted to use any affidavits of the second defendant, Achilles Constantinidis if he does not attend for cross-examination.
It is necessary to provide a brief sketch of the substantive proceedings to understand the first and second defendants’ adjournment application. This summary is largely drawn from the submissions of the parties and my own brief foray into the pleadings. This is certainly not intended to be a comprehensive summary.
This dispute appears to centre around a block of land in Anambah (the Land). The plaintiff and the first defendant, SMRT Log Proprietary Limited (SMRT Log) are the registered proprietors of the Land. They are co-owners as tenants-in-common, and each hold a half-share of the Land. The subject matter of the dispute relates to the circumstances in 2020 in which the land was transferred from its previous registered proprietor to the plaintiff and the first defendant.
In the plaintiff’s most recent pleading, the Second Further Amended Statement of Claim filed on 30 September 2024 (2FASOC), there are what I would describe as three “groups” of defendants. One group is the first defendant, SMRT Log, and the second defendant, Mr Achilles Constantinidis. Loosely speaking, SMRT Log is a company associated with (or, according to the 2FASOC, controlled by) the second defendant. The second defendant also provided accounting and financial advice to the plaintiff, including potentially in relation to the transfer of the Land from the previous proprietors to the plaintiff and first defendants. A range of relief is sought in relation to both the first and second defendants in respect of the transfer of the Land. These defendants are jointly represented.
The second group of defendants is third defendant, a law practice trading as Tomaras Lawyers, and the fourth defendant, Mr John Tomaras (collectively, the Solicitor****s), who appear to have performed legal work for the plaintiff in connection with the transfer of the Land. The claim against the Solicitors concerns allegedly negligent advice given to the plaintiff in connection with the transfer of the Land. These defendants are jointly represented.
The third group, albeit a group of one, is the fifth defendant, Mr Andrew Rofe. The fifth defendant has also put on a cross-claim against the plaintiff. The dispute between the plaintiff and the fifth defendant pertains to alleged work and damage done on the Land since the transfer of the land to the plaintiff and the first defendant.
While I consider the above is a sufficient summary of the substantive proceedings to understand the first and second defendants’ motion, I may refer to further detail about the proceedings where necessary.
The first and second defendants’ position in their written submissions on the motion is that the case against the first and second defendant could be adjourned as against the first, second and fifth defendant (I note that the contention the claims against and by the fifth defendant/cross-claimant could be separated out is additional to what was sought in prayer 2 of the motion). The first and second defendants' written submission did not address the alternative relief they sought. However, orally, the first and second defendants did in effect press either prayer 2 or prayer 4 of the motion as alternatives, submitting that they would be content with prayer 4 as a “middle-ground” in the circumstances.
As was finally put in each of their written submissions:
the plaintiff opposed the whole of the relief sought in the motion;
the third and the fourth defendants opposed the vacation of the hearing and opposed the claims against them being heard separately from other claims for relief in the proceedings, but neither consented to nor opposed the use of the second defendant’s affidavit evidence without him being cross-examined;
the fifth defendant opposed the relief as sought in the motion but contended the whole of the hearing should be vacated.
The only evidence on the motion was a short affidavit by the solicitor for the first and second defendants, Mr Beazley, made on 14 May 2026. Annexed to that affidavit were two letters from medical practitioners. Annexure A was a letter signed by Dr Yasmin Nosrat, General Practitioner (GP) at Glenorie Village Medical Practice, dated 11 May 2026. Mr Beazley says on information and belief that Dr Nosrat is the second defendant’s regular treating GP. Annexure B was a letter from Dr Gary Gan, the Clinical Lead of Heart Failure Services at Westmead Hospital, dated 13 May 2026. Dr Gan says that the second defendant has been under the care of the Heart Failure Service at Westmead Hospital **“**over the last 2 years”.
While the evidence was not objected to, the plaintiff and the Solicitors did make submissions as to the weight that ought to be given to this evidence. The fifth defendant proceeded on the basis that what was said in the doctors’ letters was to be accepted on its face.
There appear to me to be three issues requiring determination:
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?
Second, should the first and second defendants be permitted to use the affidavits of the second defendant notwithstanding his unavailability for cross-examination?
Third, should the hearing as a whole be vacated?
In determining all of these issues, I have necessarily kept in mind the need to have regard to the various matters set out in ss 56-58 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), as I am required to do when deciding whether to make an orders or directions for the management of proceedings.
For the reasons which follow, I have determined:
all claims in these proceedings should be determined together;
subject to any further evidentiary rulings, the first and second defendant should be able to use affidavit evidence of the second defendant notwithstanding he is unavailable for cross-examination; and
the hearing commencing 1 June 2026 should proceed.
The first and second defendants submitted that the claims against the Solicitors are a discrete issue and could be heard separately. They submit that while the claims against the Solicitors “may have some impact on the case as between the Plaintiff and the First Defendant”, the case against them “does not require evidence from the second defendant”.
The Solicitors submitted that while the pleaded case against them is “solely dependent on acceptance of the Plaintiff’s version of events”, there was a factual interconnection between the second defendant’s evidence and the evidence of both the plaintiff and the Solicitors. They say the second defendant’s evidence is part of the “central factual question” between the plaintiff and the Solicitors, namely, who gave instructions to have SMRT Log as co-purchaser of the Land? (The plaintiff’s case, according to the Solicitors, is that it was the second defendant who gave those instructions).
Additionally, the Solicitors in their written submissions point out that the relief sought for the loss claimed by the plaintiff to have been caused by the Solicitors’ alleged negligence is damages representing the value of the 50% interest in the Land which was not conveyed to the plaintiff, which the Solicitors submit is duplicative of the relief sought against the first and second defendants. The Solicitors say that the damages case against them would fall away if the plaintiff succeeded against the first and second defendants and so separating out the claims against the first and second defendants would “alter the landscape of arguments available to the Solicitors to resist causation and quantification of loss”.
For her part, the plaintiff submitted that her case against the defendants cannot be separately determined.
The fifth defendant also submitted that the case against him cannot be neatly separated out of the case against the other defendants. I note these submissions were made in a context where the first and second defendants were seeking to separate out only those parts of the claims against them (as opposed to the position in the first and second defendants’ written submissions which effectively accepted the plaintiff’s claim against the fifth defendants (and his cross-claim against the plaintiff) could not be separated away from the claims against the first and second defendants).
While not expressly stated as such, I have treated this as an application for an order under r 28.2 of the Uniform Civil Procedure Rules 2005 (UCPR).
In Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580 at [8], Justice Ball summarised the principles relevant to whether an order should be made under r 28.2 that a question is to be decided separately from any other question in the proceedings. I gratefully adopt his Honour’s summary and set it out below:
“In the ordinary course, all issues for determination should be determined together: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141. The applicant for an order that one or more questions be determined separately bears the onus of satisfying the Court of the appropriateness of that course of action: Crawley v Vero Insurance Ltd (2012) 17 ANZ Ins Cas 61-946 at [17]. Separate determination of an issue may be appropriate where the issue “is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy”: CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 606 per Kirby P. Separate determination of an issue is not appropriate where factual matters relevant to the issue to be determined separately are relevant to other issues in the case or where the same witnesses are likely to give evidence in relation to the factual issues that are relevant to the questions sought to be determined separately and to other issues in the case: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(5)(b)] per Einstein J. An important factor in ordering a separate question is whether it can be expected that determination of the separate question will or will be likely to bring about a substantial saving in time and costs compared to a hearing of all issues: Todd Hadley Pty Ltd v Lake Maintenance (NSW) Pty Ltd [2019] NSWCA 262 per Bell P at [15].”
I accept the submissions made that the claims must be tried together and that it is not appropriate for any claims in these proceedings to be separately determined from each other.
I accept the Solicitors’ submissions that there is overlap in the plaintiff’s cases against them and the first and second defendants.
Without finally determining the issue, there is some force in the submission that the claim against the Solicitors would fall away if relief is obtained from the first and second defendants in relation to the Land. That alone would appear to be a compelling reason not to separate out the claim against the Solicitors. If the plaintiff could make out her case against both the Solicitors and the first and second defendants, there would appear to be substantial and overlapping issues as to the appropriate remedies.
Just based on the relevant paragraphs of the 2FASOC, there is an allegation that the plaintiff did not give authority for SMRT Log to become a co-purchaser of the Land. In their Defence filed 8 November 2024, the Solicitors deny that allegation. I therefore also accept that the plaintiff’s claim against the Solicitors has an evidentiary interconnection with the evidence of the second defendant. The relationship between the plaintiff, the Solicitors and the first and second defendants would appear to be key factual questions necessary to resolve even just the plaintiff’s claim against the Solicitors. If the claims against other parties were heard later, there seems to be a risk of inconsistent findings concerning the conduct of the second defendant in relation to the transfer of the Land between findings made in a later hearing and findings made in relation to just the plaintiff’s claim against the Solicitors. These factors militate strongly against the separate determination of the plaintiff’s claim against the Solicitors. It is telling the plaintiff considers her claims against all defendants must be heard together.
I do not consider that it would be facilitate the just, quick and cheap resolution of these proceedings to determine the plaintiff’s claims against the Solicitors separately from any other claims in these proceedings.
There appears to now be no dispute that the fifth defendant’s claims are closely linked to the claims against and evidence of the first and second defendants, such that it would be inappropriate to separately address the plaintiff’s claims against the first and second defendants. To the extent it is necessary, I do record that I accept the fifth defendant’s written submissions that there is a close interrelation between the case against him and the matters relevant to the claim against the first and second defendant. What is set out there makes it obvious that the dispute between the plaintiff and the fifth defendant could not be sensibly determined separately from the dispute between the plaintiff and the first and second defendants.
The application for the separate determination of issues in this proceeding should be refused.
The power the Court had to grant prayer 4 of the motion was not clear to me either on the face of the motion or in the submissions of the parties.
At the hearing, I asked the solicitor for the first and second defendants whether he was relying on r 35.2 of the UCPR or whether he was in fact seeking an advance ruling under s 192A of the Evidence Act 1995 (NSW) (Evidence Act) in relation to the admissibility of the second defendant’s affidavit. The first and second defendants expressly disavowed the idea that this application and prayer 4 was meant to be some sort of advance ruling as to the admissibility of the second defendant’s affidavit evidence. Orally, the solicitor for the first and second defendants said that the purpose of the motion and a paragraph of his affidavit which referred to ss 63 and 67 of the Evidence Act was to in fact put the other parties on notice of the fact the first and second defendants do intend to rely upon the second defendant’s affidavit evidence. The solicitor said that questions as to whether the affidavit evidence of the second defendant ought to be admitted was a question which should be dealt with at the start of the hearing in the usual way.
I queried with the parties whether instead this ought to be treated as an application for the court to “order otherwise” under r 35.2(3) of the UCPR. The first and second defendants did not address me further on this issue but they also did not expressly disavow reliance on that provision, once I had raised it. None of the respondents, ie the plaintiff, the Solicitors and the fifth defendant, addressed me on whether r 35.2(3) was relevant.
Before turning to the merits of the first and second defendant’s application on this front, it is useful to set out my opinion as to the interaction between r 35.2 of the UCPR and the rules of evidence contained in the Evidence Act, which is necessary to understand the frame through which I have approached this aspect of the motion.
Rule 35.2 of the UCPR provides as follows (emphasis added):
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.
Rule 35.2(3) addresses what happens when a deponent “does not attend” for cross-examination when they have been required to do so, with notice of that requirement being given by a party a reasonable time before the time for cross-examination. The consequence for non-attendance (and I emphasise the word “attend” is used in the rule) is that, unless a deponent is dead or a court orders otherwise, an affidavit may not be “used”.
What it means to “use” an affidavit within the meaning of the rule is not evident on the face of it. On one view, the “use” of an affidavit could be as evidence in proceedings, such that the effect of an order under r 35.2(3) allowing the use of an affidavit is essentially to admit the contents of an affidavit into evidence or to enable an affidavit to remain in evidence.
However, I consider the better view of the use of the word “use” in r 35.2 to be something less than the admission of an affidavit into proceedings. For one, I do not think it would have been the intention of the drafter of this rule to introduce by sidewind a way of getting around the hearsay rule, especially when r 31.5 of the UCPR, which deals with the giving of notices under s 67 of the Evidence Act, expressly contemplates the continued operation of s 67 the Evidence Act. This suggests a harmonious operation should be given to the UCPR and the Evidence Act. It is also not apparent to me that the rules of the UCPR necessarily trump the rules of evidence in any event. The Civil Procedure Act, the legislation under which the UCPR are made, contains within it a provision, s 70, which expressly contemplates the rules of evidence continue to operate in civil proceedings alongside the legislation and rules governing civil procedure.
It is important to remember that the contents of an affidavit of someone which is being read but where the deponent is not a witness in the proceedings comprises first-hand hearsay within the meaning of the Evidence Act to the extent what is said in such an affidavit is being relied upon for the truth of its contents. If r 35.2 simply permitted the admission into evidence of an affidavit where a deponent did not attend for cross-examination, then it would open up a much wider range of circumstances in which hearsay evidence of this kind could be relied upon. This was my reason for emphasising the precise words of r 35.2 governing when that rule can be employed to order an affidavit be “used”.
The relevant power is enlivened when someone does not “attend for examination”. Whatever the limits of the phrase “attend for examination” may be (as to which, see Saravinovska v Saravinovski *(*No 5) [2015] NSWSC 128 at [85]) that appears to be a looser expression than the phrase “not available to give evidence” as used in s 63 and “available to give evidence” in s 64 of the Evidence Act. For example, a person might not “attend for examination” but still be “available to give evidence”, given cl 4 of the Dictionary to the Evidence Act tightly defines what it means to “not available to give evidence about a fact”. If the maker of a hearsay statement is available to give evidence, as defined, then s 64(2) of the Evidence Act only permits their hearsay evidence to be excepted from the hearsay rule “if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.” But r 35.2 of the UCPR has no similar restrictions – once someone does not “attend for examination”, the Court has the power to permit their affidavit to be “used”. It might be the case that there is no “undue expense” or “undue delay” in calling someone to give evidence or it is “reasonably practicable” to call someone who is otherwise did not “attend for examination”, and yet r 35.2 could, on a wide reading, be used to circumvent the operation of s 64 of the Evidence Act.
The evident purpose of r 35.2 of the UCPR as part of facilitating the just, quick and cheap resolution of proceedings is to incentivise parties to give early notice when they require witnesses to be put to the burden of attending court to be cross-examined, including by forensically penalising a party who is given reasonable notice a witness is required for cross-examination but the witness does not attend (if the reason for non-attendance is not the fault of the party calling the witness, then perhaps different issues arise: see, eg, D’Apice v Passas [2026] NSWSC 146).
I consider the rule is procedural in nature, similar to r 10.2 of the UCPR, which also refers to the “use” of an affidavit. That rule provides as follows:
10.2 Service of affidavits
(1) A party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.
(2) A party who fails to serve an affidavit as required by subrule (1) may not use the affidavit except by leave of the court.
A party may “use” an affidavit that has not been filed if they serve it a reasonable time before the occasion for “using” it arises. A party might also “use” an unfiled affidavit if the court gives leave under sub-rule (2). If “use” meant “admit into evidence” in this context (and surely it must bear a consistent meaning with “use” in r 35.2), then the effect of r 10.2 would be that a party could simply have a court receive into evidence any unfiled affidavit which is served a reasonable time before a hearing. That is an obviously absurd outcome. I do not think it could be seriously suggested that if a party merely served an unfiled affidavit a reasonable time before a hearing, or received leave to use an affidavit under r 10.2 of the UCPR, that suddenly means the whole of an affidavit is received into evidence without the rules of evidence otherwise applying. Such an absurd outcome ought to be avoided and was not the intention of the drafter of the UCPR in promulgating rules governing when parties may “use” affidavits.
For those reasons, I consider that when these rules refer to the “use” of an affidavit, I consider that all they are referring to is whether, as a matter of procedure, a party is entitled to seek to rely on the contents of an affidavit, without impacting how the rules of evidence contained in the Evidence Act might otherwise affect whether the actual text of the affidavit or any documents annexed to or exhibited with the affidavit are admitted into evidence.
What I mean is perhaps best explained by demonstration. Party X gives party Y reasonable notice that witness A is required for cross-examination. Witness A then does not show up to Court to be available for cross-examination, and party Y then seeks to read the affidavit of witness A. I think that r 35.2(3) would, by default, effectively prohibit party Y from reading witness A’s affidavit at all. However, if a court made an order under r 35.2(3) to let party Y use the affidavit of witness A, then that removes a procedural hurdle to using that affidavit, in that it could properly be put before the Court. But if, for example, that affidavit contained inadmissible opinion or credibility evidence, or just plain irrelevant evidence, then the provisions of the Evidence Act would still apply to exclude those aspects of the affidavit from evidence, if objected to.
I have gone through this somewhat lengthy explanation to reach one important point: I consider that any determination I make in relation to this motion about whether the second defendant’s affidavits could be “used” in these proceedings will still be subject to the objections, including hearsay objections, that the parties may make to his affidavit evidence, having regard to the rules of evidence contained in the Evidence Act. I consider that all I am being asked to do by this aspect of the application is to consider whether, as procedural step, it would be permissible for the first and second defendant to seek to rely on the affidavit evidence of the second defendant at all without him being in court to be cross-examined. It is now appropriate to turn to the determination of the question at hand.
Each of the plaintiff and the fifth defendant made many submissions in writing and orally emphasising at length the importance of the second defendant’s evidence in these proceedings. I do not consider it necessary to deal with those submissions in detail. I readily accept that the second defendant is a key player in these proceedings. His evidence in relation to disputed conversations will certainly be relevant and critical to the cases the parties are running.
The fifth defendant and the plaintiff expressly submitted that there will be significant issues as to the second defendant’s credit in these proceedings. While I do not know what precisely the cases of the parties will be, the first and second defendants did not suggest the second defendant’s credit would be unimportant and I have no reason to doubt the parties’ submissions as to the importance of the second defendant’s credit.
However, just because the second defendant’s evidence is important, and the parties here want every opportunity to test it, this is not the only relevant consideration in the circumstances of this matter.
The medical evidence put before me, acknowledging that at the moment it simply comprises two letters from doctors, suggests the second defendant is chronically ill, and has multiple ailments. Dr Gan’s letter says the second defendant has been diagnosed with “severe heart failure” in the setting of “multiple comorbidities”. Dr Gan’s letter also says he has “limited mobility”, “intermittent urinary incontinence” and “persistent exertional breathlessness”, and the doctor describes the second defendant as “essentially housebound”. Dr Nosrat’s letter additionally says the second defendant has “severely limited” function and requires “assistance with basic activities of daily living”. She also says the second defendant is:
“experiencing significant psychological distress, including anxiety, stress, panic symptoms, impaired concentration, and reduced coping capacity triggered by the current court matter. He [the second defendant] reports feeling unable to manage the demands associated with preparation of legal document and court participation without substantial risk of further deterioration in his physical and psychological health”.
“Given the complexity of his chronic disease and his functional impairment, Achilles is not fit to attend or participate in court proceedings. Doing so will risk jeopardizing his heart failure and result in clinical deterioration.”
The plaintiff and the Solicitors orally and in writing sought to make submissions suggesting that I ought to give low probative weight to the opinions of the doctors because their reasoning in relation to aspects of the opinions were not exposed. They also emphasised that the letters were in some parts based off matters reported to the doctor by the second defendant.
Both the plaintiff and the fifth defendant submitted that the second defendant’s cross-examination should occur in person though, in writing, the plaintiff did not necessarily oppose the second defendant being cross-examined over an audio-visual link (AVL). The fifth defendant’s stance was firmer: orally, she made submissions that the cross-examination of the second defendant would be difficult over AVL.
The plaintiff and the Solicitors (the latter of whom, admittedly, had a neutral stance on this particular issue) made submissions as to the fact that accommodations might be made in relation to or limitations could be placed on the cross-examination of the second defendant. I note that, for his part, the fifth defendant did not want to be encumbered in how his counsel could cross-examine, though I did not understand this submission to suggest physical accommodations, eg breaks, could not be made as appropriate.
I do not consider it necessary to address either of these classes of submissions because I think they miss the real issue here.
No one seriously challenged the fact that the second defendant has been diagnosed with many severe chronic illnesses and is experiencing the severe physical symptoms he is. No one put to me that his reports of psychological distress to his GP were not true. Regardless of whether the doctors could properly opine on the fitness of the second defendant to “participate in court proceedings” as they both did (and I record that I in fact am inclined to the view that these doctors do have a basis and the expertise to make such assessments), it is not seriously in dispute that the second defendant is significantly ill. The fifth defendant did accept that the second defendant was so unfit he could not physically attend court.
It is not apparent to me that, as the plaintiff and the Solicitors appeared to submit orally, that this is the kind of case where psychological symptoms have emerged merely because of court proceedings. There are prior diagnoses of post-traumatic stress disorder and “depressed mood” identified by Dr Nosrat in the second defendant’s medical history but it is not stated when these diagnoses were made. However, even if the correct reading of Dr Nosrat’s letter is that the second defendant’s psychological symptoms have only emerged since the proceedings started, then they have clearly manifested in a significant way. And, particularly importantly, these are psychological symptoms affecting a person whose body is already evidently suffering significant physical stress from his many serious comorbidities.
I think the single oral reply submission made by the solicitor for the first and second defendants encapsulates the consequence of these facts in this case: it is not clear that there will be much forensic value as far as questions of demeanour will go in cross-examination. I accept that submission. As the first and second defendants submitted, there is a difference between assessing the demeanour of someone who is “sick” versus someone who is not. In the case of the second defendant, I think there is much to be said for the proposition that it is unlikely a judge watching the second defendant, be it in the witness box or even by AVL, could properly assess the second defendant’s demeanour as it will be unclear whether problems in answering questions will be attributable to the witness not telling the truth or to the clinical presentation of his many illnesses. I am additionally not sure, even if issues of demeanour are set to one side, that an elongated, stop-start cross-examination with a physical witness who suffers from persistent exertional breathlessness and intermittent urinary incontinence, together with significant psychological distress, anxiety, stress, panic symptoms, and impaired concentration, in need of lots of breaks and accommodations, would necessarily yield much in the way of answers to questions.
There is evidently going to be prejudice to at least the plaintiff and the fifth defendant, and perhaps even the Solicitors, if I allow the first and second defendants to use the second defendant’s affidavit without him being there to be cross-examined. The circumstances here are unfortunate, to say the least.
However, as the Solicitors submitted in writing, which submissions I accept, the mere fact that cross-examination of the second defendant is not possible, in my view, does not mean the interests of justice tend in favour of stopping the second defendant’s affidavit being used. The Solicitors properly submitted that procedural fairness does not always entitle a party to cross-examine a central witness in the proceedings. In matters in the Probate and Family Provision List of this Court, a usually important witness who might be able to give evidence is not present – namely, the deceased person whose estate is the subject of a dispute. And yet, matters move on. Similar considerations would seem to apply in cases of historical child sexual assault where a trial is not necessarily unfair just because key persons in the case have died (eg GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32; CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 at [103]).
The lateness of this application tends somewhat against granting to the first and second defendants the relief sought in prayer 4, but I do not propose to weigh this highly.
I consider that the overall interests of interests of justice mean that the first and second defendants should be permitted to use the second defendant’s affidavits without him being present to be cross-examined. I will make an order under r 35.2(3) of the UCPR to that effect. I also consider, in light of the evidence of the significant medical difficulties the second defendant is experiencing, that there is sufficient justification to excuse the second defendant from attending court. I will make an additional order to that effect.
To be very clear here, the effect of my decision, in my opinion, is to remove the procedural barrier to the first and second defendants seeking to put into evidence the content of any affidavit by the second defendant. Whether any rules of evidence, including but not limited to the rule against irrelevant evidence, the hearsay rule, the opinion rule, or s 135 of the Evidence Act, might be used to prevent the affidavit evidence being admitted is an entirely separate question. As the parties have clearly foreshadowed, that question will no doubt be ventilated on the first day of the hearing.
It appears that only the fifth defendant contends that the whole hearing should be vacated. While prayer 2 of the motion was styled as an application to “vacate” the hearing, the terms of the motion itself limit that vacation to vacation of the hearing “as between” the plaintiff and the first and second defendants. As noted earlier, I have understood this claim as, in substance, being an application for the separate determination of issues. I think the terms of prayer 2, and the written submissions in support of it, tacitly accept that the hearing dates should not be lost. Additionally, I gathered from the terms of the alternative relief in prayer 4 and their brief oral submissions in chief, that if the case against them cannot be severed at large, the first and second defendants do not oppose the hearing still going ahead. The “middle ground”, in their submission, was to have the evidence “be admitted” but have the second defendant “not being available to be cross-examined”.
The plaintiff and the Solicitors made submissions against vacating the hearing.
The fifth defendant submits that it would be procedurally unfair to him to not be able to cross-examine the plaintiff and that it would therefore be appropriate to vacate the entirety of the hearing pending the second defendant becoming medically fit enough to be cross-examined.
The premise of the fifth defendant’s submissions, that the second defendant might get better, is not made good on the evidence before me. As both the plaintiff and the Solicitors point out, and as is apparent anyway on the face of the doctor’s letters which were in evidence, the second defendant’s conditions are chronic. Dr Nosrat’s letter says the second defendant is unlikely to be medically fit to participate in court proceedings **“**for at least the next six months”. But nowhere in that sentence, on a plain reading of it, is Dr Nosrat saying that, in her opinion, the second defendant’s condition would improve. Dr Gan’s letter goes further and suggests the second defendant will **“**remain functionally disabled from his heart failure and other chronic comorbidities”. Even without the expressions of opinions from the doctors, the conditions suffered by the second defendant are described in their various letters as chronic (and I have not understood any party to be disputing that the second defendant suffers from the conditions described in the letters, and that some or all of those conditions are chronic). If they are enough to make him medically unfit to give evidence now, as I have determined, then there is nothing to give me comfort the second defendant’s situation would improve.
There are also a series of other reasons the hearing ought not to be vacated at this late stage:
the trial in these proceedings is about to commence in just over a week;
the proceedings have been on foot since 2021 and, while all of the reasons for the delay in bringing it on for hearing were not canvassed in submissions, the need for timely disposal of the proceedings weighs in favour of keeping the hearing dates (Civil Procedure Act s 57(1)(d));
the matter is listed on an estimate of two weeks, and has been listed for hearing since September 2025, such that the efficient use of available judicial resources and disposal of the business of the court would be more likely to be achieved by hearing the matter now than delaying the re-listing of the matter for many months (noting the difficulty of accommodating long hearings in the busy calendar of the Equity Division) (Civil Procedure Act s 57(1)(b)-(c)); and
it was not explained why, to the extent vacation of the hearing was sought based on the condition of the second defendant, why any application to do so was not brought earlier given this issue was raised by the solicitor for the first and second defendants at the pre-trial directions hearing I held on 1 April. The first and second defendants’ solicitor did say that he only became aware of the deteriorated condition of the second defendant recently, when he went to prepare his application for the second defendant to give evidence by audio-visual link, but it is still not clear why even that application was brought as late as it was. The untimely nature of any application to vacate in these circumstances weighs against vacation (Civil Procedure Act s 58(2)(b)(ii), (v)).
The hearing should not be vacated, and ought to proceed on 1 June 2026.
I was not addressed on costs.
The Solicitors, in writing, and the plaintiff, in her oral submissions, submitted that the issue of costs could be dealt with later.
In the event, the first and second defendants have succeeded in part on the motion.
I consider the appropriate course would be to reserve costs. The effect of r 42.7 of the UCPR is that unless some other order is made, the costs of this motion will be dealt with consistently with whatever costs order is made regarding the proceedings at large. If the parties consider that it is necessary for a costs order to be made separately in relation to the motion and incur the additional time and expense in preparing submissions in support of that application, then they can take that course as they wish.
I make the following orders:
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.
The second defendant is excused from attending the hearing.
The Notice of Motion filed by the first and second defendants on 15 May 2026 is otherwise dismissed.
The costs of the Notice of Motion are reserved.
**********
[14] - moved comma after “Tomaras” to after “ ... the Solicitors)” and moved “collectively, “ inside the brackets, before “the Solicitors” [17] - “first and second defendants written submission” in second sentence corrected to “first and second defendants’ written submissions” [29] - “rule 28.2” shortened to “r 28.2” [32] - “against” added before “them” [33] - second instance of “the Solicitors” in final sentence corrected to “the first and second defendants” [39] - “usual day” corrected to “usual way” [45] - duplicated reference to r 31.5 deleted [47] - “‘available’ s 64” corrected to “‘available to give evidence’ in s 64” [69] - “being” added before “present” [74] - “as described” corrected to “are described” [80] - “consistent” corrected to “consistently”
McCall
SMRT Log Pty Ltd
(2023) 280 CLR 442
(1985) 1 NSWLR 601
(2001) 206 CLR 1