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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

JUDGMENT

Introduction

1. On 22 May 2026, I determined a motion by the first and second defendants in these proceedings: McCall v SMRT Log Pty Ltd [2026] NSWSC 575 (Earlier Judgment). Defined terms in the Earlier Judgment will be used here. Familiarity with the earlier reasons is presumed and necessary to understand these reasons.

2. Now before me is the second application to vacate the final hearing of these proceedings in short succession. This time, by a Notice of Motion which I gave leave to file in Court on 28 May 2026, it is the plaintiff who is applying to vacate the hearing. That application arises in the context of the plaintiff having filed a Summons, this morning, seeking leave from the Court of Appeal to appeal two of the orders I made in the Earlier Judgment.

3. To repeat what I said at [1] of the Earlier Judgment, 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 Hammerschlag CJ in Eq on 12 September 2025. This motion was filed in Court and heard by me on the same day, Thursday, 28 May 2026. There is only one clear working day between the motion being filed and heard and the start of the final hearing.

4. At the oral hearing of the motion, commencing at 4:30pm on 28 May 2026:

5. Mr A Bulley of counsel appeared with Mr M Donohue of counsel for the plaintiff, who is the applicant on this motion;

6. Mr P Beazley, solicitor, appeared for the first and second defendants;

7. Ms M Hall of counsel appeared for third and fourth defendants;

8. Ms E Glover of counsel appeared for the fifth defendant.

I thank the parties’ lawyers for appearing on such short notice. As will be apparent from the chronology set out below, that notice was especially short.

5. Given the extreme urgency with which the plaintiff’s motion was brought on for hearing, I have only received oral submissions from the parties, to which I have had regard. I have prepared these reasons as expeditiously as possible given the urgency attending the motion. I have done so without the benefit of a transcript. As with the Earlier Judgment, I will make reference to the submissions of the parties to the extent necessary, but I do not intend to make detailed reference.

6. For the reasons which follow, I will dismiss the plaintiff’s Notice of Motion. The hearing is to proceed, as scheduled, on 1 June 2026.

Evidence

7. The plaintiff read the affidavit of Mr Christopher James Pinto sworn 28 May 2026 (Pinto Affidavit). Mr Pinto is the solicitor with carriage of the matter in the firm of solicitors instructed by the plaintiff. That affidavit was the only evidence read and it was received by the Court without objection. The affidavit contains information as to the steps taken by the plaintiff’s lawyers following the Earlier Judgment being delivered in these proceedings. It also annexed a copy of the Summons Seeking Leave to Appeal (the Summons) and the draft Notice of Appeal.

Background

8. A short synopsis of the substantive proceedings is set out at [11]-[15] of the Earlier Judgment. I will not repeat it here.

9. Before getting into the merits of the application, I will set out the chronology of events leading up to this application.

10. As already stated, on 22 May 2026, I handed down the Earlier Judgment. In the Earlier Judgment, I made four orders. It is orders 1 and 2 which are relevant. By those orders the Court:

11. permitted, pursuant to r 35.2(3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the first and second defendants to use any affidavits of the second defendant, notwithstanding he will not be attending for cross-examination; and

12. excused the second defendant from attending the hearing.

13. The circumstances of the first and second defendant’s motion which was determined in the Earlier Judgment are set out in the Earlier Judgment and do not need to be repeated here.

14. Mr Pinto says he obtained instructions from the plaintiff to file a Summons seeking leave to appeal on Monday (25 May 2026) afternoon (Pinto Affidavit at [4]). He says that since that time, him and counsel briefed in the matter had been preparing the necessary documents to include in the White Folder as required under the UCPR.

15. On Tuesday, 26 May 2026, I caused my Associate to email the legal representatives for the parties as the parties were in default of certain pre-trial directions I had made to provide, amongst other things, written opening submissions in advance of the hearing.

16. In response to that email, Mr Pinto emailed my Chambers on Wednesday, 27 May 2026 at 10:36am on behalf of the plaintiff. In that email, Mr Pinto indicated that his client had given instructions to file a Summons for leave to appeal in relation to the Earlier Judgment, which they anticipated doing at 10:00am on Thursday, 28 May 2026. Mr Pinto indicated that once the foreshadowed Summons was filed, he would email again in relation to the first directions listing received from the Court of Appeal. Mr Pinto also foreshadowed an application to me “for a stay of the hearing commencing 1 June 2026”. Just over an hour later, at 10:48am, Ms Tamara James, a solicitor acting for the Solicitors (as defined in the Earlier Judgment) emailed my Chambers to indicate the Solicitors opposed the foreshadowed application and that any application “should be prosecuted by the plaintiff on an urgent expedited basis”.

17. Mr Pinto says he filed the Summons and the White Folder at approximately 12:30pm on 28 May 2026 (Pinto Affidavit at [6]).

18. The first directions hearing on the Summons was listed for 2:30pm on 6 July 2026, which Mr Pinto says was the earliest available date as at the time of filing (Pinto Affidavit at [6]). I note that Mr Pinto says it is expected the plaintiff will file a Notice of Motion to seek an expedited hearing of the Summons (Pinto Affidavit at [8]).

19. At 2:27pm on 28 May 2026, Mr Pinto emailed my Chambers. Attached to it was the Notice of Motion to which this judgment relates and the Pinto Affidavit. He advised that the Summons had now been filed and indicated that his client sought that the hearing be adjourned until after the Summons was determined by the Court of Appeal.

20. At 3:50pm on the same day, I caused my Associate to email the parties to ask if the parties would be available for either a hearing of the plaintiff’s Notice of Motion that afternoon at 4:30pm or the following morning at 9:30am.

21. By 4:17pm, the solicitors for each of the parties had indicated to my Associate that their counsel (or, in the first and second defendants’ case, the solicitor himself) were available to appear. I then caused my Associate to email the parties to advise the motion would be heard at 4:30pm that afternoon (the afternoon of 28 May 2026).

22. I then proceeded to hear the motion at just after 4:30pm on 28 May 2026.

The positions of the parties

21. The plaintiff, evidently, wanted the hearing scheduled to commence on 1 June 2026 vacated. The fifth defendant indicated he did not oppose the vacation application and considered the vacation of the hearing appropriate in light of the Summons, but made no further submissions in support of it.

22. The first and second defendants took a neutral position and, apart from a brief submission suggesting that the plaintiff could yet go to the Court of Appeal directly to adjourn the hearing, no submissions were made by them either way.

23. The Solicitors opposed vacation of the hearing.

Issue

24. The sole issue is whether the final hearing of this matter should be vacated.

25. For the reasons which follow, I consider the hearing should proceed.

Consideration

26. I note the plaintiff in oral submissions submitted I was exercising the inherent jurisdiction of the Court in adjourning the proceedings, were I to do so. I consider I am exercising my power to adjourn proceedings under s 66 of the Civil Procedure Act 2005 (NSW) (CPA).

27. In coming to my decision, I have had regard to the ss 56-58 of the CPA, as I am required to do when making case management orders under the CPA. In Xu v Cao & Du Management Pty Ltd (No. 3) [2025] NSWSC 979 at [51]-[60], Lonergan J set out a summary of the relevant principles. I will set out her Honour’s summary below:

“Principles regarding vacation of a hearing date

[51] The Court’s discretion to vacate a hearing date is provided for in s 66(1) of the Civil Procedure Act 2005 (NSW):

66 Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

…

[52] The exercise of that discretion is governed by the overriding purpose of delivering the just, quick and clear resolution of the real issues in the proceedings: s 56 Civil Procedure Act.

[53] The Court must also bear in mind the factors referred to in s 57 Civil Procedure Act including, relevantly, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the business of the court.

[54] The dictates of justice require that the court to consider, amongst other things, the position of both the parties, not simply the applicant for vacation. Attention must be paid to the degree of injustice that would be suffered by both parties as a result: s 58(2)(vi) Civil Procedure Act.

[55] The degree to which the respective parties have fulfilled their duties under s 56(3) must be considered. This includes compliance with directions and court orders: s 58(2)(iv) Civil Procedure Act.

[56] The object of ‘elimination of delay’ between the commencement of proceedings and final determination is an important consideration in the context here of a contract made in 2016, an alleged default in 2018, and a 2022 statement of claim: s 59 Civil Procedure Act.

[57] The object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute is also a factor: s 60 Civil Procedure Act.

[58] Cases applying these principles to an application for a vacation or adjournment highlight the need to consider and balance the applicant’s position with that of the other party and the prejudice suffered by the other party and other litigants by delay to resolution of the matter. Such delay may not be compensable by costs orders. This is relevant here in circumstances where there is a serious question mark over Mr Cao’s liquidity.

[59] Cases have also highlighted the impact of a vacation or adjournment on other litigants’ access to justice, and the efficient use of court resources, an object expressed in s 57 of the Civil Procedure Act. In Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 182, French CJ explained that the time of the court is a publicly funded resource and ‘[l]nefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system’.

[60] In UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45, Kiefel CJ, Bell and Keane JJ at 92 stated:

‘The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court Act] [corresponding to s 56 of the Civil Procedure Act]. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the ‘just resolution’ of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court Act]. Integral to a ‘just resolution’ is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed ‘right’ of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate.’”

See also what was said by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13].

Prejudice

28. The plaintiff’s application fastened on what her counsel described as the “incurable prejudice” the plaintiff would suffer if the hearing was to proceed while the Court of Appeal proceedings were in progress, which the plaintiff submitted should be the “overriding” consideration. The “plain” prejudice the plaintiff submitted she would suffer stems from the Court’s earlier decision, the consequence of which is that a “chief” witness in the case is now not attending to be cross-examined, and which means the plaintiff does not have the benefit of testing the second defendant’s evidence. The plaintiff also submitted that if the Court of Appeal ultimately determined that my Earlier Judgment was wrong and that in fact the first and second defendants should not have been permitted to use the second defendant’s affidavit evidence without him being present for cross-examination, then there would be wasted costs as the hearing would have to restart or be redone. The plaintiff submitted that in this case, there are critical and disputed conversations from some years ago that need to be assessed and that the Court needs to assess the competing versions. I take it then the plaintiff is submitting that if the second defendant is not here to be cross-examined, then the plaintiff is prejudiced in some way in being able to convince the Court that her version of events should be preferred.

29. As to prejudice, I reject the plaintiff’s submissions. My reasons for doing so essentially involve an acceptance of the Solicitors’ submissions on this topic.

30. In the first place, I consider that the “prejudice” identified by the plaintiff has not yet crystallised. Again, I accept the starting proposition that the second defendant is a key player in these proceedings. However, as I sought to stress at [70] of the Earlier Judgment and as counsel for the Solicitors recognised, what I have not done is make any advanced ruling as to whether any affidavit evidence from the second defendant, or parts of that evidence, should be admitted into evidence.

31. The plaintiff submitted that any evidentiary rulings I might make, and the objections the parties would take, would be affected by the second defendant not attending for cross-examination, though it was not articulated how precisely the parties’ objections and my rulings might change. Additionally, even if I had not made the orders I did on 22 May 2026, it is not apparent to me we would be in any different position. Even without my earlier orders, if the second defendant did not appear to be examined even by AVL, we would seem to be in the same position as we are now, in that the Court will probably have to make a determination whether to admit the second defendant’s affidavit evidence if he is not otherwise a witness in the case (in the sense of being present to be cross-examined). At [39] of the Earlier Judgment, I recorded that the solicitor for the first and second defendants has purported to put the other parties on notice that he intends to rely on s 63 of the Evidence Act 1995 (NSW) in this regard. Additionally, notwithstanding my orders, it is still possible the plaintiff could succeed in objecting to the admission of some or all of the second defendant’s affidavit evidence. I am not satisfied that, as yet, the plaintiff has been prejudiced to the extent she submits she has been, because I consider my orders have the more limited effect identified by the Solicitors.

32. Additionally, even if there is any prejudice to the plaintiff that is properly identified as stemming from the orders made in the Earlier Judgment, and one assumes I was wrong in the Earlier Judgment, the plaintiff would not have lost her right of appeal from those orders if the hearing was to proceed. As the Solicitors submitted, even if the plaintiff loses in the substantive hearing and wishes to appeal any substantive orders I make, the plaintiff can still ask the Court of Appeal to correct any interlocutory order that was made which affected any final orders (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [5]-[6], [51]). In that decision, Gaudron, McHugh and Hayne JJ said at [4]-[6] (footnotes omitted):

“Interlocutory orders and appeal against final judgment

[4] In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.

[5] It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example. As was said, in a very early judgment of this Court:

‘There is only one judgment of the Court appealed from . . . and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him.’

As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford:

‘On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.’

In both Nolan v Clifford and and Crowley v Glissan reference was made to Maharajah Moheshur Sing v Bengal Government as authority for the proposition stated.

[6] The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis added).”

33. The plaintiff would, in my estimation, be in the same position she would be if what had happened was that on day 1 of the hearing I simply admitted into evidence the second defendant’s affidavit evidence. If this was an evidentiary ruling in the course of the hearing, I have serious doubts the plaintiff would be permitted to fracture the hearing to appeal an interlocutory evidentiary ruling. She is in a very similar position at the moment, which tends against accepting that her prejudice is necessarily incurable.

34. If the plaintiff succeeds in the Court of Appeal, there might be a possibility that a retrial might be necessary. But so much would also be true if I admit evidence which I ought not to have which materially impacts the final outcome. In that sense, the plaintiff is not unlike many other litigants in this Court who face important evidence being admitted over objection.

35. Finally, I accept the Solicitor’s submission that even if one proceeds on the basis that the second defendant’s evidence is going to be admitted, it is important to recognise that the plaintiff bears the onus on her case. Even if the second defendant’s evidence was not admitted at all (and again, it should be stressed that no decisions have been made yet about the admissibility of evidence), the plaintiff still bears her own onus to satisfy the Court that her version of events should be accepted. Even if a Court rejects a defendant’s positive defence, that does not necessarily mean a plaintiff’s case is to be accepted. A trial judge might not be positively satisfied a defendant has made out its case, but still not be satisfied that a plaintiff who has the relevant onus of proof has discharged that onus: Boga v 15 Glenburnie Rd Pty Ltd [2026] NSWCA 23 at [52] (Adamson JA, Bell CJ and Mitchelmore JA agreeing). While it sounds like the plaintiff’s case may be more difficult to prove if the second defendant’s affidavit evidence needs to be contended with without cross-examination, that does not necessarily mean she is so prejudiced that there is a justification for the final hearing not proceeding.

The appeal itself

36. The Solicitors submitted that the prospects of the appeal are low and the appeal grounds will be difficult to establish because, as the plaintiff accepted, the plaintiff is appealing against a discretionary judgment which needs an error to be established within the principles of House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) (see Huang v Attapallil [2017] NSWCA 181 at [5], for a summary of how House v The King applies to an appeal against a discretionary judgment). The Solicitors say that my discretionary decision stemmed from an unchallenged factual premise, being that the second defendant was chronically ill and experiencing severe physical symptoms (see Earlier Judgment at [63]).

37. The Solicitors did not justify why, as a matter of principle, I should take into account the nature and prospects of the application for leave to appeal. Perhaps the very broad terms of s 58(2)(b)(vii) of the CPA would be enough justification.

38. Other judges have looked at the prospects of an appeal in determining whether to stay orders or proceedings pending an appeal. In the context of an application to stay orders pending an appeal, Leeming JA in Cassegrain v Cassegrain [2015] NSWCA 387 at [20]-[21] took into account the “weak” case on appeal in declining to order the stay sought. Somewhat closer to the situation here, in In the matter of Mayne Pharma Group Limited [2026] NSWSC 278 at [35], Brereton J was dealing with an application for an interim stay of proceedings the parties were appealing the orders made in related proceedings, where the outcome of the appeal in the related proceedings could impact the issues in the proceedings before Brereton J. In that context, Brereton J considered that his Honour could as “a matter of principle … take into account a broad brush view formed about the prospects of the appeal”. However, in the circumstances of the very complex nature of the appeal relevant to the application before his Honour, Brereton J did not seek to undertake even a broad brush assessment of the prospects of success of the relevant appeal.

39. Given that there can really be no doubt that if the plaintiff obtains leave to appeal and succeeds on the appeal, that outcome would affect these proceedings, I accept that in principle I could consider the prospects of the application for leave to appeal and of the appeal itself. However, I am of the view that doing so in this case does not add much. The proposed grounds of appeal do not say much but I accept the plaintiff’s point that not much needs to be said in them. The plaintiff indicated that there was a document containing the plaintiff’s arguments in support of her leave application but that document had not yet been served on the other parties. That document was not before the Court. Save for what might be gleaned solely from the nature of the proposed grounds of appeal, as to which the Solicitors made submissions, the Court really has no material before it to assess any prospects of appeal.

40. What is raised by the plaintiff appears to be reasonably arguable and the plaintiff did accept that an appeal impugning a discretionary decision has to demonstrate House v The King error. Not much more can really be said. While perhaps the acknowledged difficulty the plaintiff might have in succeeding on appeal (a comment made without knowing precisely what will be argued) might tend slightly in favour of not vacating the hearing, I do not propose to give this aspect of the Solicitors’ submissions much weight, especially in the circumstances where I have accepted the Solicitors’ earlier submissions that the prejudice the plaintiff seeks to rely on has not yet crystallised and is not necessarily incurable in any event.

Other considerations

41. The plaintiff submitted that the only prejudice to the other parties were the Court to order the adjournment, as sought, was in relation to costs thrown away, which could be cured by an appropriate costs order. I do not accept that submission and accept the submission of the Solicitors that the loss of a two-week hearing date was itself going to occasion prejudice. In accepting this submission, I am of the view that an order for costs thrown away will not be a complete cure for the delay and inconvenience, particularly the delay in the determination of the outcome of the proceedings, caused by an order for adjournment. I also have regard to, and highlight, what the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [5] (French CJ) and [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

42. In addition to the submissions made by the parties, in having regard to the relevant legal principles set out above, I also bear in mind that in exercising my discretion, I will have regard to the need to facilitate the just, quick, and cheap resolution of the real issues in dispute; the efficient disposal of the business of the Court; the efficient use of available judicial and administrative resources; the timely disposal of the business of the Court; and the object of the elimination of delay. As stated by the High Court in UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45, the timely, cost effective and efficient conduct of modern civil litigation takes into account the wider public interest than those of the parties to the dispute.

43. Some of the other case management considerations I have taken into account in reaching my decision to not vacate the hearing at this extremely late stage are:

44. the trial in these proceedings is about to commence in one working day from when this judgment is delivered, and was only two working days from commencing when the motion was filed;

45. as I said in the Earlier Judgment, 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 (CPA s 57(1)(d)); and

46. as I said in the Earlier Judgment, 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 relisting of the matter for many months (noting the difficulty of accommodating long hearings in the busy calendar of the Equity Division, which consideration was also adverted to by the Solicitors in their submissions on this motion) (CPA s 57(1)(b)-(c)).

47. Even acknowledging the fact that the Earlier Judgment was only handed down late on Friday, the Solicitors did say the plaintiff should have acted earlier to file the Summons and should have taken steps to make contact with the Court of Appeal to get the matter dealt with on an urgent basis. In response, the plaintiff submitted that her solicitors and counsel have been working as hard as possible to prepare the necessary materials for the White Folder. The plaintiff did acknowledge that she had not attempted to contact the equivalent of the Duty Judge for the Court of Appeal.

48. The plaintiff submitted that they were delayed by not yet having a transcript of the hearing which occurred on 21 May 2026, which the Solicitors submitted was an insufficient explanation, in the circumstances, as the plaintiff could still have started her appeal proceedings without having the transcript. I accept this aspect of the Solicitors’ submissions.

49. More broadly, I accept the plaintiff’s solicitors and counsel have been working as diligently as possible to advance the appeal proceedings and to file the Summons and the White Folder. I have no reason to doubt that. However, why the Court of Appeal itself was not approached was not satisfactorily explained. The plaintiff says that she considered I was the more appropriate person to approach, in the circumstances.

50. While I am grateful for the courtesy being given, I think not making contact with the Court of Appeal is a relevant consideration in determining the plaintiff’s application. At the moment, the Summons is only set down for directions in early July. Even accepting a motion to expedite the appeal will be filed, it is not apparent to me when even an expedited appeal (assuming the plaintiff succeeds on her motion for expedition) would be heard. Obviously, the plaintiff could not predict that – it would be for the Court of Appeal to allocate the hearing of the application for leave to appeal and the appeal itself, if leave is granted. But because the plaintiff has not actually taken any steps to contact the Court of Appeal, I do not consider it justified to take the drastic step of vacating the hearing and delaying the proceedings even further. If the Court of Appeal had already indicated it would hear the matter on an urgent basis, we may be in a different world. But that is not the case here.

51. The plaintiff is right in describing the circumstances of this case as unusual. I am being asked to vacate a hearing on the basis of a party seeking to appeal an interlocutory order I have made, where the plaintiff has already commenced the appeal process before the final hearing has started despite the final hearing starting imminently. In this, I have been asked to, at some level, assess the prospects of success in an appeal against my own orders and consider how a successful appeal against my discretionary judgment might forensically affect the parties’ cases in a final hearing which I am yet to begin hearing. I am being asked to consider this application without having any indication either way as to whether the Court of Appeal could be urgently convened (and I have no basis to even begin speculating on that issue). In saying all this, I am not being critical of the plaintiff seeking to appeal the orders I made. But it does mean I am in a somewhat invidious position. I simply make those remarks to acknowledge the unusual nature of what is occurring.

52. For those reasons, in the circumstances before me, I consider the plaintiff’s Notice of Motion should be dismissed. The hearing should not be vacated and ought to proceed on 1 June 2026.

53. I acknowledge that between now and when the hearing commences, the plaintiff may or may not approach the Court of Appeal, and the Court of Appeal may make orders which renders any decision I make nugatory or might otherwise affect the conduct of the hearing. If that possibility eventuates then it will be managed.

Costs

51. I note that prayer 5 of the Motion was for an order that costs be reserved. There were no oral submissions made of substance in relation to this issue, one way or the other.

52. As with the Earlier Judgment, I consider the appropriate course would be to reserve costs. To repeat what I said in the Earlier Judgment, 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. This is especially relevant to note considering the final hearing is imminent and will proceed. If the parties consider that it is necessary for a costs order to be made separately in relation to this motion, they can take that course as they wish.

Orders

53. I make the following orders:

54. Dismiss the plaintiff’s Notice of Motion filed in Court on 28 May 2026.

55. The costs of the Notice of Motion are reserved.

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