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[2026] NSWCA 63
respondent. Time for filing the leave summons was extended to 2 February 2026. The amended summons for leave to appeal was dismissed, the applicants were ordered to pay the respondent’s costs, the second...
The Court of Appeal refused permission to challenge the primary judge's procedural decisions. It accepted that the AVL connection had problems, but found that Mr Adamson had been able to make his submissions and that the judge understood them. It also rejected the bias argument and concluded that the pleaded January 2023 breach could not be treated as time-barred merely by pointing to earlier defaults. The Court extended the time for filing the application, but dismissed it and the related stay motion.
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2,389 words · generated 08/10/2026
BCU began proceedings in the Supreme Court of New South Wales seeking possession of a property in Coffs Harbour and payment of amounts it alleged were owing under a loan agreement and an associated credit-card contract. The original statement of claim, filed on 5 September 2024, alleged that Mr Adamson had defaulted on 6 January 2023. He was initially the sole defendant. Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust and Paclaw Lawyers were later joined as defendants because they occupied the secured property. Those procedural facts are recorded at [9]–[10].
In October 2025, BCU applied to amend its statement of claim. The proposed changes were confined: BCU sought to change the alleged date of the credit-card contract from 3 November 2017 to 8 April 2014, and to add an allegation that it had increased the credit limit to $15,000 at Mr Adamson's request on 30 June 2014: [11]. BCU's supporting affidavit explained that the original contract could not be located and that the date in the system-generated copy reflected when the record was created. It also identified statements and transaction records supporting the proposed changes: [12].
The applicants opposed the amendment and sought to strike out the credit-card claim. At the hearing on 17 October 2025, Mr Adamson appeared by audio-visual link. The Court of Appeal later accepted that the connection had technical problems, including gaps or delays that could result in speakers talking over each other: [14]–[15], [34]. The primary judge nevertheless granted BCU leave to amend and dismissed the applicants' motion: [19]–[21].
At a later directions hearing, on 27 November 2025, Mr Adamson applied for a stay and raised an application for recusal based on actual and apprehended bias. The primary judge dealt with recusal first and refused it, then refused the stay: [23]–[27]. The applicants sought leave to appeal both the amendment decision and the later decisions. Their proposed grounds included procedural unfairness, breach of s 20D of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), bias, limitation and the alleged failure to comply with pre-contract disclosure requirements: [7].
The Court of Appeal extended time to file the leave summons to 2 February 2026 but dismissed the application for leave. It also dismissed the second applicant's stay motion, vacated its scheduled hearing, and ordered the applicants to pay the respondent's costs: [46]–[48].
The Court began with the leave threshold. As stated at [6], an applicant must identify an issue of principle, a question of public importance, or a reasonably clear injustice that goes beyond something merely arguable. The Court applied that test separately to the principal grounds rather than treating the applicants' dissatisfaction with the rulings as sufficient.
On recusal, the Court applied the apprehended-bias principle from Ebner v Official Trustee in Bankruptcy. It said that a judge making orders opposed by a party does not, without more, indicate that a fair-minded lay observer might reasonably apprehend that the judge would not bring an impartial mind to the issues: [30]. The Court also considered the primary judge's efforts to prevent speakers talking over one another. It treated that as a practical and fairness-related concern: overlapping speech could prevent parties from hearing the judge and compromise the creation of an intelligible transcript. It therefore found no proper basis for recusal and described the proposed ground as untenable: [30]–[32].
The Court's discussion of AVL fairness was fact-specific. It acknowledged that the connection was difficult, but found that Mr Adamson had a fair opportunity to make the points he wished to make. The primary judge repeated the points back to check understanding, and Mr Adamson had finished his submissions before the judge gave ex tempore reasons: [35]. The Court also rejected the claim that there had been insufficient time to prepare for the amendment motion. BCU had filed its motion on 10 October, and it was listed for hearing on 17 October. The applicants' own motion was, at least partly, unnecessary because they could resist BCU's application directly: [38].
The Court did not treat the statutory power to use remote hearings as making every technical difficulty a ground for appeal. It observed that applications for a direction permitting a party to appear by AVL are ordinarily made by notice of motion under Part 18 of the UCPR, with the notice period specified there, unless the court otherwise orders: [37]. Mr Adamson's request at 4 am for a 9.30 am hearing was late, but the primary judge allowed the remote appearance. The Court found no unfairness in the judge's criticism of the timing: [37].
As to s 20D of the AVL Act, the Court described the consequences of a failed or unavailable link as a matter of fact and degree. It considered whether the transmission was so compromised that an adjournment or another order was required, rather than assuming any technical problem required an adjournment: [40]–[42]. It also referred to the primary judge's obligation under s 56(2) of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues. The Court noted that remote appearances were advantageous to Mr Adamson given his location, age, health and professional commitments, while recognising that fairness required communication to remain adequate: [42].
On limitation, the Court focused on the pleaded breach. The original pleading alleged a failure to comply with a demand in January 2023, and the amendment did not alter that allegation: [44]. The Court said a contractual claim arises on breach. Earlier defaults, even if they occurred more than six years before the claim was filed, did not establish that the pleaded claim was out of time. The limitation issue, if there was one, was appropriately left for the final hearing: [44]. The Court similarly treated the alleged absence of pre-contract disclosure as an issue for trial if it remained live, rather than a basis to strike out the pleading or refuse amendment: [44].
The judgment does not purport to set out a comprehensive account of the law before the decision or to announce a new general test. It applies established propositions identified in the reasons. The leave threshold came from authorities referred to in PPK Willoughby Pty Ltd v Baird: the applicant must show an issue of principle, a question of public importance, or reasonably clear injustice beyond something merely arguable: [6].
For recusal, the Court relied on Ebner and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd. It noted that bias should be addressed first where alleged, because if established it would affect the validity of the orders and directions: [29]. It also rejected the suggestion that a stay application should be dealt with before a foreshadowed recusal application, referring to Concrete: [31]. The Court cited Barakat v Goritsas (No 2) for the proposition that leave may frequently be appropriate where a recusal refusal is challenged, assuming the challenge is not patently untenable and a long, costly trial would be avoided if the lower decision were wrong: [29]. It then found this particular challenge untenable: [32].
For remote hearings, the judgment applies s 20D as allowing an adjournment or other appropriate order if a link fails or is unavailable: [40]. Its contribution is a practical explanation that the remedy depends on the extent and effect of the failure, assessed in the circumstances. It also connects that assessment with the overriding purpose in s 56(2) of the Civil Procedure Act: [42]. The decision does not say that efficiency overrides fairness. Rather, the Court treated adequate communication for procedural fairness as necessary to justify proceeding.
For limitation, the Court applied its understanding of when a contractual claim arises to the pleaded allegation before it: [44]. It did not decide the ultimate limitation issue, nor did it determine whether the alleged disclosure defect affected the credit-card claim. The judgment therefore leaves those questions open for the final hearing if they remain contested.
At [6], the Court states the leave threshold: “there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable”. In plain English, it was not enough to show that a different view could be argued. The proposed appeal needed to meet one of those more substantial criteria.
At [35], the Court says: “Procedural fairness requires that these difficulties be overcome to a sufficient extent.” This recognises that a remote hearing can be affected by technical problems, but asks whether the problems actually prevented a fair opportunity to participate. On the evidence the Court considered, it found that Mr Adamson could make his points and the primary judge understood them.
At [42], the Court says that whether a compromised link requires an adjournment “will almost invariably be a matter of fact and degree”. In plain English, a court must assess how serious the communication problem was in the particular hearing. The judgment does not establish that every interruption requires an adjournment, or that a court can proceed regardless of the effect on fairness.
At [44], the Court explains that “a claim for breach of contract arises on breach”. This was relevant because the pleading alleged a January 2023 breach. The Court did not treat earlier defaults as enough, by themselves, to establish that the pleaded claim was out of time. It expressly left any limitation issue for the final hearing.
The orders at [48] show the procedural result: time was extended, but leave to appeal was refused. The extension did not itself grant permission to appeal or alter the primary judge's orders.
The decision is most directly relevant to interlocutory leave applications where the proposed appeal challenges procedural rulings and the applicant needs to satisfy the threshold stated at [6]. It illustrates that allegations of error, even when framed as unfairness, bias or statutory breach, are assessed by reference to the actual record and whether the asserted issue meets the leave criteria.
For remote-hearing disputes, the fact pattern involved a party appearing by AVL, transmission difficulties, some risk of speakers talking over one another, and a judge who repeated the party's points to confirm understanding. The Court found that those circumstances did not show a denial of procedural fairness: [34]–[36]. A different assessment could turn on materially different evidence about whether the party could hear, be heard, follow the proceedings or make submissions. The judgment provides no exhaustive list of circumstances requiring an adjournment.
The case also addresses late applications for remote appearance. Mr Adamson sought permission by email at 4 am on the morning of a 9.30 am hearing. The Court considered that notice insufficient in the ordinary course, while noting that the primary judge nevertheless permitted the appearance: [23]–[24], [37]. The decision is therefore relevant to the procedural importance of timely notice, but it does not decide every issue that might arise from a late AVL request.
On bias, the case concerns a recusal argument based on rulings against a party and a judge's insistence on orderly turn-taking during hearings. The Court held those matters insufficient in the circumstances before it: [30]–[32]. It does not establish that criticism or courtroom management can never contribute to a bias claim; its reasoning depends on the context and the explanation given by the primary judge.
On limitation and pleadings, the relevant pattern was a claim alleging a contractual breach in January 2023, an amendment changing the alleged contract date, and evidence of earlier defaults. The Court considered that earlier defaults did not establish, on the pleading alone, that the pleaded claim was time-barred: [44]. It treated the ultimate limitation and disclosure matters as issues for trial, rather than deciding their merits on the leave application.
The supplied judgment contains no information about later judicial treatment of this decision. It was delivered on 20 April 2026, and the text provided identifies no later cases applying, distinguishing or criticising it. A reliable account of subsequent treatment cannot be given from this source alone.
The treatment of earlier authorities within this judgment can be described. The Court applied the leave threshold discussed in PPK Willoughby Pty Ltd v Baird at [6]. It relied on Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd when explaining why bias should be dealt with first and why the recusal issue could not be postponed behind the stay application: [29], [31]. It cited Barakat v Goritsas (No 2) for the general observation about leave applications challenging refusals to recuse: [29]. It applied Ebner to assess the apprehended-bias contention: [30]. These are the relationships shown by the judgment itself, not claims about later cases.
The decision does not determine whether BCU ultimately proved the alleged credit-card contract, the alleged 2014 credit-limit increase, or the alleged breach. The Court described those matters as part of the underlying proceedings and did not decide them on the leave application: [11]–[12], [44].
Nor does it decide whether the credit-card claim was ultimately within the limitation period. Its conclusion was narrower: on the pleading as it stood, the alleged January 2023 breach meant the claim could not be treated as time-barred merely because earlier defaults may have occurred more than six years before the proceedings began. The Court said the limitation issue, if any, was for the final hearing: [44].
The judgment also does not determine whether BCU had complied with any applicable pre-contract disclosure requirement. It understood the reference to s 160 of the Evidence Act 1995 (NSW) as part of a submission that the disclosure document had not been served, and said that any such issue was for trial if it remained in issue: [43]–[44].
Finally, the Court did not formulate a detailed operational test for every AVL failure. It stated that the decision whether to adjourn or make another order is ordinarily a matter of fact and degree, linked to whether communication remains sufficient for procedural fairness: [40]–[42]. Questions about a different type or severity of failure would need assessment on their own facts.
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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: Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust v Police and Nurses Limited trading as BCU [2026] NSWCA 63
Hearing dates: On the papers
Decision date: 20 April 2026
Before: Adamson JA; Ball JA
Decision: (1) Extend the time for filing of the summons for leave to appeal to 2 February 2026.
(2) Dismiss the amended summons for leave to appeal dated 27 March 2026.
(3) Order the applicants to pay the respondent’s costs.
(4) Dismiss the second applicant’s notice of motion filed on 24 March 2026.
(5) Vacate the hearing date of 18 May 2026 for the second applicant’s notice of motion filed on 24 March 2026.
Catchwords: APPEAL — leave to appeal – alleged procedural unfairness resulting from difficulties in transmission created when applicants’ legal representative appeared by AVL at hearing of respondent’s motion for leave to amend statement of claim — subsequent application for recusal on basis of apprehended and actual bias refused — no issue of principle, question of public importance or reasonably clear injustice going beyond the merely arguable — leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 160
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 20D, Pt 1A
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), r 50.12, Pt 18
Cases Cited: Barakat v Goritsas (No 2) [2012] NSWCA 36
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Category: Procedural rulings
Parties: Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust (First Applicant)
Christopher Michael Adamson (Second Applicant)
Police and Nurses Limited trading as BCU, a division of Police and Nurses Limited (formerly Bananacoast Community Credit Union Limited) (Respondent)
Representation: Counsel:
C M Adamson (solicitor) (Applicants)
N Derrington (Respondent)
Solicitors:
Paclaw Lawyers (Applicants)
Gadens (Respondent)
File Number(s): 2025/456616
THE COURT: By amended summons dated 27 March 2026, Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust and Christopher Adamson (the applicants) seek leave to appeal against orders made by Faulkner J (the primary judge) in proceedings brought by Police and Nurses Limited trading as BCU, a division of Police and Nurses Limited (formerly Bananacoast Community Credit Union Limited) (the respondent, or BCU) in the Common Law Division in the Supreme Court (the Court below).
The orders in respect of which leave to appeal is sought are as follows:
orders made on 17 October 2025 granting leave to the respondent to file an amended statement of claim and the corresponding dismissal of the applicants’ notice of motion filed on 15 October 2025 which sought that leave to amend be refused and that the statement of claim be struck out; and
orders made on 27 November 2025:
(a) refusing the applicants’ application that the primary judge recuse himself; and (b) refusing the applicants’ application for a stay of the proceedings pending their application for leave to appeal to this Court.
In their amended summons for leave to appeal, the applicants also seek a stay of the proceedings in the Court below. The stay was also sought by notice of motion filed by the applicants on 23 February 2026. By consent, the notice of motion for a stay was adjourned to be heard on 18 May 2026, following determination of the leave application. On 16 April 2026, the parties consented to the leave application being determined on the papers.
The applicants’ summons for leave to appeal was not filed until 2 February 2026, which was more than 28 days after each of the orders challenged. Accordingly, the applicants require an extension of time for leave to appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 50.12(1)(c). Although a notice of intention to appeal was filed by the applicants on 25 November 2025, this date was more than 28 days after the amendment order and pre-dated the orders made on 27 November 2025 and was therefore, inoperative with respect to those orders.
For the following reasons, leave to appeal, the stay and the notice of motion ought be refused with costs.
To obtain leave to appeal, the applicants need to show that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (PPK) at [6] (Bell P and Simpson AJA).
The hearings appealed from were conducted unfairly, and without jurisdiction and contrary to law including as follows:
(i) The hearings were conducted unfairly in breach of the rules of procedural fairness and natural justice.
(ii) The hearings below on 17 October 2025 and 27 November 2025 were conducted in breach of s 20D of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
(iii) The judge appeared biased and therefore lacked jurisdiction to hear the proceedings below and to make any of the orders, directions and findings made below as and from 17 October 2025.
(iv) The judge below erred in law by his misapplication of s 14 of the Limitation Act 1969 (NSW) and his inadvertence to s [1]60 of the Evidence Act 1995 (NSW).
(v) The judge below erred in allowing the amendment of the statement of claim and dismissing the defendants’ below application to strike out the Visa credit card claim by failing to follow the approach and principles laid down by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27*.*
Some background to the proceedings in the Court below is useful. References to paragraphs in the primary judge’s reasons have the prefix “J”.
BCU commenced the proceedings in the Court below by statement of claim filed on 5 September 2024, claiming possession of a property in Coffs Harbour of which BCU is the registered mortgagee (the secured property). BCU also sought judgment for an amount alleged to be owing pursuant to a loan agreement and an associated credit card contract. BCU relied on an alleged default on 6 January 2023: J[1] (17 October 2025). Mr Adamson, the borrower under the loan agreement and the credit card contract, was named as the sole defendant.
On 24 October 2024, on Mr Adamson’s application, Paclaw Pty Ltd trading as Paclaw Lawyers (Paclaw Lawyers) and the first applicant were joined as defendants on the basis that they were occupants of the secured property where Mr Adamson resides and from which he conducts his practice as a solicitor.
By notice of motion filed on 10 October 2025, BCU applied for leave to file an amended statement of claim. The proposed amendments were relatively confined. The first proposed amendment changed the date of the credit card contract from 3 November 2017 to 8 April 2014. The second proposed amendment inserted an allegation, in paragraph 9A, that on 30 June 2014, at the request of Mr Adamson, BCU agreed to increase the credit limit on the credit card to $15,000. On 10 October 2025, BCU’s notice of motion was listed for hearing on 17 October 2025.
BCU’s notice of motion was supported by an affidavit sworn on 10 October 2025 by Susan Forrest, its instructing solicitor and a partner at the firm Gadens. Ms Forrest deposed that the original credit card contract between BCU and Mr Adamson could not be located and that when BCU generated a copy of the credit card contract in 2017, the computer system automatically populated the date of the contract with the date on which the record was generated. It was on this basis that BCU alleged in the statement of claim that the loan contract was dated 3 November 2017. Ms Forrest also deposed that in 2025 BCU provided her with the following documents, which formed the basis of the proposed amendments and which were exhibited to her affidavit:
a copy of the first credit card statement, which related to the period 1 April 2014 to 30 April 2014;
a record of the first transaction on 8 April 2014; and
records that indicated that on 30 June 2014 the limit on Mr Adamson’s credit card with BCU was increased from $5,000 to $15,000.
On 15 October 2025, the three defendants (Mr Adamson, the first applicant and Paclaw Lawyers) filed a notice of motion seeking that the primary judge refuse BCU’s application for leave to amend the statement of claim and that the claim for relief under the credit card contract and all allegations in support of the claim be struck out. The notice of motion was supported by Mr Adamson’s affidavit sworn 15 October 2025 which annexed a default notice addressed to him dated 17 June 2016 and a letter of offer from BCU dated 21 February 2017.
On 17 October 2025, Mr Adamson, who appeared via Audio Visual Link (AVL) confirmed that he appeared on behalf of all three defendants. He submitted that the defendants’ motion filed on 15 October 2025 ought be heard with BCU’s application for leave to amend. The primary judge confirmed that both motions would be dealt with together on that day.
It is apparent from the transcript of the proceedings on 17 October 2025 and the recording (included in the White Book) that there were some difficulties with the AVL connection between the Court below and Mr Adamson. Some words were apparently not transcribable and there may have been a delay which resulted in Mr Adamson speaking over the primary judge.
Mr Adamson opposed leave being granted to BCU to file the amended statement of claim on the following bases:
the proceedings were an abuse of process (because there was never an agreement in 2017);
the effect of the amendment was to replace one cause of action with another one;
the cause of action was statute-barred;
there was evidence of bad faith;
BCU’s allegation that it had sent the requisite pre-contract disclosure notice to Mr Adamson by post was inconsistent with s 160 of the Evidence Act 1995 (NSW), which Mr Adamson alleged did not allow evidence of a contract by post to be admitted; and
BCU had not explained its delay in seeking the amendment.
The primary judge obtained Mr Adamson’s confirmation in oral exchange that Mr Adamson made challenges (1)-(4) above. Thereafter, Mr Adamson made two further challenges ((5) and (6) above).
In his oral submissions, Mr Adamson submitted that the cause of action was statute-barred as the notice of default (annexed to his affidavit) was dated 17 June 2016 and the proceedings were commenced more than six years later on 5 September 2024.
Without hearing from BCU, the primary judge gave BCU leave to amend its statement of claim and dismissed the defendants’ notice of motion. His Honour gave ex tempore reasons for these orders.
As to the challenges in (1) and implicitly also (5) above, the primary judge observed that issues of fact such as the one raised by Mr Adamson were matters for the hearing and did not warrant leave to amend being withheld (J[8]). His Honour said that he did not discern any reason why the proposed amendment would be an abuse of process (J[9]). The primary judge rejected Mr Adamson’s submission that the amendment to the date of the contract amounted to a replacement of one cause of action with another (J[10]). The primary judge observed that the submission of bad faith ought not to have been made in circumstances where the Court was not directed to any evidence warranting the submission (J[11]). The primary judge also observed that the submission that the claim was statute-barred appeared to be based on the misapprehension that time started to run from the date of the contract rather than the date of the alleged breach. His Honour noted that the statement of claim alleged a breach in January 2023 and that, accordingly, the claim was, on the face of the pleading, within the limitation period of six years stipulated in s 14 of the (NSW).
1 The defendants’ notice of motion filed 15 October 2025 is dismissed with costs.
2 Grant the plaintiff leave to file the amended statement of claim in the form contained at pages 14 to 22 of "SF-1" to the affidavit of Susan Forrest sworn 10 October 2025.
3 No order as to costs.
4 The defendants/cross-claimants file and serve any amended defence and cross-claim by 3 November 2025.
5 The plaintiff/cross-defendant file its defence to any amended cross-claim by 14 November 2025.
6 The cross-claimants file any reply to the defence to any amended cross-claim by 21 November 2025.
7 The plaintiff/cross-defendant serve the evidence in chief on which it intends to rely at the trial of the proceeding by 21 November 2025.
8 The defendants/cross-claimants serve the evidence in chief on which they intend to rely at the trial of the proceeding by 12 December 2025.
9. The proceeding be listed for directions before Faulkner J at 9:30am on 17 December 2025.
On 27 November 2025, the applicants applied for a stay of the primary judge’s orders of 17 October 2025, pending determination of the appeal. On that occasion, Mr Adamson sought to appear by telephone. He confirmed, in answer to the primary judge’s question, that his application to appear by telephone had been made in an email to his Honour’s associate at 4am on 27 November 2025. Mr Adamson referred to the circumstance that Ms Forrest had, at 6.30pm on 26 November 2025, sought leave to obtain a link to the Court’s AVL system so that she could watch the proceedings from the offices of Gadens.
Although the primary judge told Mr Adamson that the late notice was “unacceptable”, his Honour granted leave to Mr Adamson to appear remotely by telephone but directed Mr Adamson to make any future application by notice of motion supported by affidavit to be served seven days before the relevant hearing.
Ms Derrington, who appeared on behalf of BCU, sought to read an affidavit of Ms Forrest affirmed on 25 November 2025, in which Ms Forrest deposed to the defendants’ non-compliance with the directions made by the primary judge on 17 October 2025. BCU relied on the affidavit in support of orders set out in short minutes of order which provided for a new timetable for directions relating to the filing of a defence by the defendants and evidence by the parties.
The primary judge asked Mr Adamson why the defendants should have leave to file an amended defence as they had not availed themselves of the opportunity to do so following the filing of the amended statement of claim on 20 October 2025. Mr Adamson responded that he applied for a stay of “all the directions and orders [made by the primary judge] on 17 October [2025]” and also sought to make an application that the primary judge recuse himself on the grounds of “apparent bias”.
The primary judge asked Mr Adamson to confirm whether he was making an application for a stay or an application that the primary judge recuse himself. Mr Adamson indicated that he would prefer to have the application for a stay dealt with that day and have the application for recusal dealt with on a later occasion. The primary judge explained that any application for recusal would have to be dealt with before any other application. Mr Adamson ultimately consented to this course. The primary judge gave brief oral reasons for refusing the recusal application, which was made on the basis of actual and apprehended bias. In the reasons, his Honour highlighted the difficulties in communication occasioned by Mr Adamson’s tendency to speak over his Honour but found that the “fair-minded observer would appreciate that the business of the Court needs to be dealt with in a proper orderly way, and would not conclude for that reason that [the primary judge] may not bring a fair mind to the resolution of any issues in this case” (J[8]).
In dealing with allegations of apprehended or actual bias in the Court below, this Court should also address the issue of bias first as, if bias is established, the orders and directions made by the primary judge are invalid: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete v Parramatta Design) at [2]-[3], [117]. Where the order sought to be challenged is the refusal of a recusal application, “it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect”: Barakat v Goritsas (No 2) [2012] NSWCA 36 at [64] (Basten JA, Young JA and Sackville AJA agreeing).
In the present case, no proper basis for recusal has been identified. The making of orders which were opposed by the applicants does not, of itself, indicate that the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is to decide: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Nor is the judge’s concern that Mr Adamson not speak over his Honour capable of giving rise to such an apprehension in circumstances where his Honour was at pains to explain that it was necessary, as a matter of courtesy, convention and practicality, that one person finish speaking before another begins. Indeed, any other approach would pose a risk to procedural fairness since it would tend to prevent the parties hearing the judge and vice versa as well as compromising the creation of an intelligible and comprehensive transcript.
In so far as Mr Adamson submitted that the primary judge ought to have dealt with his stay application on 27 November 2025 and dealt with the foreshadowed application for recusal at a later time, this submission must be rejected as a matter of principle, having regard to what was said in Concrete v Parramatta Design.
The ground of appeal which concerns the recusal application does not warrant the grant of leave as there is no issue of principle, question of public importance or reasonably clear injustice going beyond something which is merely arguable. Indeed, we regard this proposed ground as untenable.
In support of this proposed ground, Mr Adamson alleged that the hearing on 17 October 2025 was conducted unfairly as there was a problem with the AVL and the applicants were not given a sufficient opportunity to prepare their evidence and submissions in support of their notice of motion filed on 15 October 2025.
The audio disc for 17 October 2025 confirms what is evident from the transcript: that there were difficulties with the quality of the AVL.
The use of AVL enables practitioners and parties who live or practise some distance from the place where a court is sitting to appear and to give evidence in a much more cost-effective way. In the present case, the applicants were the beneficiaries of this cost-saving and convenience. However, technical difficulties with AVL can produce challenges for courts and for opposing parties where communication is rendered more difficult by delays or interruptions in transmission. Procedural fairness requires that these difficulties be overcome to a sufficient extent. There were technical difficulties with the quality of the AVL in this case. However, having heard the audio recording of the hearing on 17 October 2025, we are unable to discern any denial of procedural fairness. Mr Adamson was given a fair opportunity to make the points that he wished to and the primary judge understood those points, which he repeated back to Mr Adamson to avoid any misunderstanding. It is also apparent that Mr Adamson had completed his submissions before the primary judge proceeded to give ex tempore reasons.
The applicants’ submissions in support of this ground reflect Mr Adamson’s apprehension that his application to appear by AVL on 17 October 2025 was analogous to Ms Forrest’s application for an AVL link to the courtroom for the hearing on that day. It is significant that Ms Derrington, who was appearing for BCU on that day, was present in the court room. Ms Forrest’s request was limited to an “observation link”. Further, although the primary judge was critical of Mr Adamson for providing late notice of his application for leave to appear by AVL, his Honour permitted Mr Adamson to appear by AVL and made significant allowances in the course of the hearing on 17 October 2025 to ameliorate the effects of the difficulties in transmission.
An appearance for a party to proceedings by AVL is dealt with in Part 1A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (Evidence (AVL) Act). Section 5B(1) relevantly provides that the Court may direct, either on its own motion or on the application of a party, that a person may make a submission to the court by audio link or AVL from any place in New South Wales. An application for such a direction ought, in the ordinary course, be made by notice of motion in accordance with Part 18 of the UCPR, which requires notice to be given, unless the court otherwise orders, at least three days before the date fixed for the motion. While the time can be abridged, notice given to the Court and to the other party at 4am on the morning of a directions hearing fixed for 9.30am is, self-evidently, insufficient. As a matter of practicality, the Court is effectively obliged to accede to the application or adjourn the hearing. In the present case, the primary judge acceded to Mr Adamson’s application. There is no substance in the submission that his Honour’s criticism of the lateness of the application was unfair.
Section 20D of the Evidence (AVL) Act relevantly provides that if an audio or AVL link is being used for a proceeding and fails or is otherwise unavailable, the Court may adjourn the proceeding or make another order that is appropriate in the circumstances.
Mr Adamson submitted that, because of the technical problems associated with the AVL on 17 October 2025 and the telephone on 27 November 2025, the primary judge ought to have adjourned on both occasions, rather than continue with the hearings. He submitted that this ground raises the important issue of the various rights and duties which may arise when there is a “clear failure” of an AVL or audio link in court proceedings.
We are not persuaded that this ground warrants a grant of leave. There are many ways in which an AVL or audio link may be compromised. It will almost invariably be a matter of fact and degree whether the transmission is compromised to an extent which requires an adjournment or another order. The primary judge was obliged, by s 56(2) of the Civil Procedure Act 2005 (NSW), to give effect to the overriding purpose of facilitating “the just, quick and cheap resolution of the real issues in the proceedings”. This required the primary judge to persevere with the AVL as long as his Honour was satisfied that the communication was sufficient for the purposes of procedural fairness. Had his Honour adjourned the proceedings, there was no guarantee that the AVL transmission would be better on another day. Further, Mr Adamson’s location in Coffs Harbour, as well as his age, ill-health and commitments to other clients, meant that it was to the considerable advantage of the applicants, both in terms of cost and convenience, for Mr Adamson to be permitted to appear remotely on 17 October 2025 and 27 November 2025. No issue of public importance arises. Nor are the other criteria in PPK for a grant of leave present with respect to this proposed ground.
Mr Adamson submitted that the primary judge ought not to have allowed the amendment on 17 October 2025 because the claim was statute-barred. He relied on a notice of default issued to him by BCU on 17 June 2016 and the letter of offer dated 21 February 2017. The draft notice of appeal refers to s 60 of the Evidence Act although it would appear from Mr Adamson’s submissions that this was intended to be a reference to s 160 of the Evidence Act which deals with the postal rule.
In the statement of claim as originally filed, BCU alleged that Mr Adamson had failed to comply with a notice of demand dated 17 January 2023. The amendment to the statement of claim did not change this allegation. It could not be concluded on the basis of the pleading that BCU’s claim against Mr Adamson was statute-barred since a claim for breach of contract arises on breach. That there may have been previous defaults more than six years before the statement of claim was filed is not to the point. In these circumstances, the limitation issue, if there be one, is appropriately one for the final hearing. We understand the reference to s 160 of the Evidence Act to form part of a submission that the pre-contract disclosure document in relation to the credit card contract was not served on Mr Adamson. The question whether the credit card contract can be impugned on that basis is not a matter which would warrant either the striking out of the pleading or the refusal of leave to amend. If it be an issue, it is an issue to be tried at the final hearing.
No basis for a grant of leave to appeal has been demonstrated.
We are not persuaded that a grant of leave is warranted. The matters raised by the applicants are, in the main, matters of practice and procedure. None of the criteria for a grant of leave identified in PPK is met in the present case. However, in deference to the parties’ submissions on the grounds, we are disposed to grant an extension of time.
We note that Mr Adamson has also filed a notice of motion for a stay of the proceedings in the Court below pending determination of the appeal, if leave is granted. This notice of motion is listed for hearing before this Court on 18 May 2026. As leave to appeal ought be refused, the notice of motion ought be dismissed and the hearing date vacated.
The orders of the Court are:
Extend the time for filing of the summons for leave to appeal to 2 February 2026.
Dismiss the amended summons for leave to appeal dated 27 March 2026.
Order the applicants to pay the respondent’s costs.
Dismiss the second applicant’s notice of motion filed on 24 March 2026.
Vacate the hearing date of 18 May 2026 for the second applicant’s notice of motion filed on 24 March 2026.
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Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust
Police and Nurses Limited trading as BCU
[2006] HCA 55
[2000] HCA 63
[2009] HCA 27
(2006) 229 CLR 577
(2000) 205 CLR 337
Time for filing the leave summons was extended to 2 February 2026. The amended summons for leave to appeal was dismissed, the applicants were ordered to pay the respondent’s costs, the second applicant’s notice of motion was dismissed, and its 18 May 2026 hearing date was vacated.
On 17 October 2025, after delivering oral reasons, the primary judge made the following orders and directions as follows:
The submission that the applicants were not given sufficient time to prepare for their notice of motion filed on 15 October 2025 is without substance. The motion was, as the primary judge pointed out in the course of the hearing on 17 October 2025, at least in part superfluous since the applicants could simply have resisted BCU’s motion for leave to amend. As BCU’s motion was filed in Court on 10 October 2025 and fixed for hearing on 17 October 2025, the applicants had sufficient time to prepare for it. In so far as the applicants sought to have BCU’s statement of claim struck out, it was dealt with by the primary judge in a way which does not warrant a grant of leave.
This alleged error does not warrant a grant of leave to appeal, having regard to the criteria for leave set out in PPK (referred to above).