Police and Nurses Limited trading as BCU v Adamson [2026] NSWSC 645 | Case summary

Police and Nurses Limited trading as BCU v Adamson [2026] NSWSC 645 | Case summary | Zoe

Dealing firstly with the stay application. The proceedings in this Court have a relatively long and sorry history. That history is referred to in the Court of Appeal judgment delivered on 20 April 2026 of Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust v Police and Nurses Limited trading as BCU [2026] NSWCA 63, and need not be repeated. Suffice it to say that the proceedings are presently listed for hearing in this Court on 15 June 2026. That hearing date has been listed now for some months. The applicants’ stay application seeks that the proceedings in this Court be stayed pending an application for special leave to appeal to the High Court from the whole judgment of the Court of Appeal.
Exhibit A, the proposed application for special leave to appeal, has not yet been filed in the High Court. Accordingly, the special leave application is only in draft or proposed form. The timing of any hearing of any application for special leave is unknown. Mr Adamson, who appears for himself and for the other applicants, informs from the bar table that he intends to file the application for special leave later today.
Rule 41.02.1 of the High Court Rules 2004 (“the Rules”) requires an application for special leave to be filed within 28 days after the judgment below was pronounced. Rule 41.02.2 allows for applications for special leave to be made out of time, provided an order is sought dispensing with the time limit together with the filing of an affidavit explaining any failure to comply with Rule 41.02.1. The Court of Appeal judgment said to give rise to the proposed application for special leave was pronounced on 20 April 2026. Accordingly, any application for special leave, if it were to be filed in accordance with the time limit prescribed by the Rules, has to be filed by today, 18 May 2026.
Of more significance to the stay application is s 35A of the Judiciary Act 1903 (Cth) (“Judiciary Act”). That section states the matters that the High Court shall have regard to in considering whether to grant special leave. Section 35A states as follows:

The effect of that section is that an applicant for special leave must satisfy the High Court that the issues involve a question of law that is of public importance or a question of law that is required to be decided because of differences of opinion between different courts or courts of different states. In addition, applicants have to establish that the interests of the administration of justice, generally or specifically, require the High Court's consideration.
The proposed application for special leave, in effect, raises issues relating to the risk of substantial injustice and loss of confidence in the administration of justice said to have arisen from the Court of Appeal’s decision. Specifically, it raises proposed questions of actual or apparent bias, including the possibility of future bias if the matter proceeds in a certain way and in front of a certain judge of this Court.
It also complains about a failure to give reasons for the decision requiring Mr Adamson to appear in person, given prior difficulties. Those prior difficulties were twofold. Firstly, a difficulty said to have arisen from issues with AVL connections given Mr Adamson resides in Coffs Harbour NSW. Secondly, and perhaps more significantly, difficulties that another judge of this Court experienced with Mr Adamson interrupting him, talking over him and talking at the same time as him, leading to difficulties in hearing one another and transcript difficulties.
The proposed special leave application also raises issues concerning a failure to give reasons as to why Mr Adamson was required to apply in future for leave to appear via AVL. Mr Adamson describes that as "order number 1, from the Court below, on 27 November 2025." By reference to "the Court below," I understand there Mr Adamson is referring to an order of his Honour Faulkner J.
Mr Adamson also raises that order number 1 was unlawful, the Court lacked jurisdiction and the Court erred in not adjourning the hearing of the application on that date. Further complaint is made in the proposed special leave application to not giving the applicants an opportunity to make submissions, pleading issues, issues relating to an error said to have occurred from an amendment to a credit card claim, not striking out the credit card claim, not properly taking into account s 14 of the Limitation Act 1969 (NSW) and allowing an amendment that the applicants assert is statute barred by operation of that section.
I consider that the proposed special leave grounds raised by Mr Adamson are all procedural issues, pleading issues or issues that are yet to be finally determined by this Court at any ultimate hearing of this matter. As noted, that hearing is currently listed for 15 June 2026.
The approach that I will adopt in this application is that which I conclude would be adopted by intermediate courts of appeal hearing an application to stay proceedings pending an application for special leave to appeal to the High Court.
In Rinehart v Welker [2012] NSWCA 1 (“Rinehart”), the Court of Appeal held that the approach to be adopted as to whether a stay of a judgment or order should be made in civil proceedings, pending an application for special leave to appeal to the High Court, was that enunciated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 at 684; [1986] HCA 94 (“Jennings”). That approach is one that is described as an exceptional circumstance test. As enunciated by Brennan J, the test is that an applicant must show "exceptional circumstances" before the power to grant a stay is exercised.
Further, in Jennings, Brennan J held that if a stay is necessary to preserve the subject matter of the appeal, the factors relevant to an assessment of whether a stay should be granted are whether there is a substantial prospect of special leave being granted, the conduct of the applicant for the stay, whether the grant of a stay will cause loss to the respondent and where the balance of convenience lies.
In Rinehart, at [18], the Court of Appeal cited the following passage from the judgment of Hayne J in Patrick Stevedores Operations No 2 Pty Ltd v The Maritime Union of Australia (M29-1998) [1998] HCA 30:

Turning to the application for leave to amend. The application has been met with a response from the respondent who contends that the application and its timing are wholly inadequate.
The Court has some degree of sympathy with the way in which the respondent has expressed its primary position. More relevantly, however, the respondent has indicated that, despite the application being unsatisfactory, it does not oppose the relief sought on certain conditions. The applicants have provided in draft form a proposed further amended defence and a proposed further amended first cross claim, which have been provided to the respondent. The respondent's position in relation to that material is that it is able to meet the proposed amendments without any disruption to the hearing date currently listed for 15 June 2026.
However, the respondent has proposed a number of conditions. Mr Adamson, on behalf of the applicants, has submitted that the conditions sought are not acceptable. Mr Adamson made the submission that he does not want to be foreclosed from the possibility of tendering further evidence. In that submission, he pointed to certain aspects of the affidavit on behalf of the respondent, namely the affidavit of Susan Forrest, sworn 15 May 2026, which he submitted may give rise to the need of the applicants to put on additional evidence before the hearing.
In response to that submission, Ms Derrington submitted that many of the aspects complained of in Ms Forrest's affidavit are matters that have been known to the applicants for some time. I am mindful that Mr Adamson, although a solicitor of many years in practice, appears for himself without independent legal representation. Bearing that in mind, I am inclined to make the orders that the applicants seek in relation to the amendments. Those amendments, however, appear to be relatively minor in nature and raise issues which the respondent has indicated it can deal with by a relatively minor revision to the timetable between now and the hearing, and the respondent's ability to deal with that material will not disturb the proposed hearing date.
In those circumstances, I am satisfied that the proposed amendment sought by the applicants is one which should be the subject of leave, both in relation to the defence and the cross claim. However, such a proposed amendment at this late stage does have some significant issues in relation to the programming and timetable between now and the hearing. I consider it entirely reasonable that the granting of leave to amend should also be accompanied by orders confining the applicants from tendering any further evidence without prior leave of this Court.

A Notice to Produce for Inspection (“Notice to Produce”) dated 13 May 2026 has been referred to in the submissions of the parties. None of the notices of motion which the applicants moved today sought any orders in relation to that Notice to Produce.
The Notice to Produce sought as a single category all invoices for Gadens Lawyers' professional fees and for counsel's fees debited to the loan and mortgage account of the first defendant/cross claimant.
The Notice to Produce does not specify or identify documents by reference to any date, any range of dates, any named or numbered invoice or any particular account or account number. Accordingly, in its terms, it is broad and generic.
Notices to produce are dealt with by the rules of this Court. Rule 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that a party serving a notice to produce must satisfy one or both of two limbs. The first limb is for the production of any document or thing referred to in any originating process, pleading, affidavit or witness statement served by the opposing party. The second limb is for the production of any specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.
Notices to produce are a different mechanism to discovery. A notice to produce requires specificity to identify the document or thing so that the opposing party knows with some particularity what it is they are being required to produce.
Additionally, under the second limb of the rule, a notice to produce requires the document to have some relevance to a fact in issue. The authorities of Penrith Rugby League C**lub Ltd v Brown [2004] NSWSC 1182 (“Penrith”) and Norris v Kandiah [2007] NSWSC 1296 (“Norris”) deal with precisely the issue that is presently before the Court, that is, that notices to produce must not be used as a form of general discovery. The way in which notices to produce are to be used in accordance with the UCPR are to specifically identify documents that are referred to in pleadings, affidavits or statements, or to clearly identify documents to be produced if they are relevant to a fact in issue in the trial.
In Penrith and in Norris, the notices to produce in question were found to be invalid because they were too broad and generic and failed to sufficiently identify specific documents said to be relevant.
The same criticism applies to the Notice to Produce in the present case. It requires the production of an unspecified number of documents over an unspecified period in circumstances where it seems the only pleaded issues relating to invoices are those referred to in paragraph 4 of the proposed further amended defence and in paragraph 27 of the proposed further amended cross claim. Each of those references are not found in a pleading of the opposing party, but instead in the applicants’ own pleadings.
The material that has been brought to my attention on this application indicates that those particular invoices referred to in the applicants’ pleadings, with one exception, were provided voluntarily or pursuant to some earlier form of notice in correspondence sent by Gadens to Mr Adamson on 31 January 2025. That letter indicates that four invoices were provided or produced but that those invoices were subject to some redactions on the basis of legal professional privilege.
The invoices which form part of the affidavit material of Mr Adamson and its annexures indicate that the unredacted portions of the invoices refer to loan account numbers, dates upon which professional work was carried out, the dollar and unit hour values for that work, and the total amounts invoiced for professional fees and disbursements.
Other unredacted portions of the invoices show descriptions of the type of work that was being carried out, including itemising telephone calls and emails, personal attendances, drafting documents, reviewing documents and considering issues. The redactions, however, appear to be the detailed descriptions of work done which then follow those generic categories of itemised work. The basis upon which those redactions have been made is, as I understand it, that they disclose details of the legal professional advice and work that was being carried out on behalf of the respondent.
I note the undertaking from counsel appearing for the respondent that the invoice dated 26 October 2023 for the amount of $517.55 referred to as statement 119 will be voluntarily produced to the applicants.
It is the applicants themselves who have pleaded specific reference to these five invoices. Gadens have already produced four of those invoices and are about to produce the fifth. Further, the Notice to Produce does not comply with the UCPR because of its lack of specificity. In addition, I am satisfied that beyond the named invoices referred to in the applicants’ pleadings, Gadens' fees are otherwise not relevant to the issues to be determined in the proceeding. Accordingly, I am satisfied that the Notice to Produce is invalid.
For the above reasons, I order the Notice to Produce dated 13 May 2026 be set aside.

Police and Nurses Limited trading as BCU v Adamson

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

ex tempore JUDGMENT

The stay application

The leave to amend application

The notice to produce

Costs

Orders

Parties

Legislation Cited (5)

Cases Cited (8)