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[2026] ACTCA 24
respondent. The application for leave to appeal dated 25 June 2026 was dismissed with costs ([31]).
The ACT Court of Appeal refused the Shearmans permission to appeal directions about the next steps in their ongoing building-debt case. The directions were procedural and discretionary, and the judge found no sufficiently demonstrated error in the primary judge’s decision. The Court considered that new medical or other evidence could be taken to the primary judge in support of changing the timetable, while relevant errors could be raised after the final decision if they affected the result. It also considered that an appeal could not be heard before the deadlines, so a stay would effectively grant the practical outcome sought. Although Ms Shearman asked for an adjournment because she was receiving mental health treatment, the Court concluded that the circumstances did not make it unfair to proceed. The application was dismissed with costs.
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2,649 words · generated 07/10/2026
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Classic Constructions (Aust) Pty Ltd had brought proceedings in the ACT Supreme Court seeking recovery of a debt it said Debra and Leigh Shearman owed under a building contract. At the stage of the leave application, the underlying case had been running for a long time and was close to completion. The Shearmans had generally represented themselves, with Ms Shearman acting for both herself and Mr Shearman. The primary judge had information that Mr Shearman played no active part because of his health and that Ms Shearman was not medically fit to conduct the proceedings at that time ([3], [21]).
On 18 June 2026, Muller J made directions intended to allow Ms Shearman time to recover before the case moved to written and oral final submissions. The directions required the defendants to file and serve written submissions by 20 August 2026. The final oral submissions hearing was later fixed for 28 September 2026 ([1]). The primary judge’s reasons, Classic Constructions (Aust) Pty Ltd v Shearman (No 9) [2026] ACTSC 200, described the procedural history, which Mossop J adopted rather than repeating ([2]).
The Shearmans applied for leave to appeal on 25 June 2026. Their proposed appeal grounds were extensive, and their draft notice of appeal sought to rely on substantial further evidence. Some grounds did not specifically concern the directions under challenge ([4]). Ms Shearman’s supporting affidavit was 152 paragraphs long, with 330 pages of exhibits. It addressed her medical condition, the loss of legal representation, the court book, document production, witnesses and exhibits, reasonable adjustments, and an asserted inability to receive an effective opportunity to be heard under the directions ([10]).
The defendants did not appear at the leave hearing. On the morning of the hearing, Ms Shearman emailed requesting an adjournment because she was admitted to a mental health facility, receiving treatment, and unable to attend either in person or by audiovisual link. She sought time to obtain an updated assessment of her capacity ([20]–[22]). Mossop J admitted her affidavit and considered the draft notice of appeal. The defendants had not filed the written submissions the Court had directed them to file ([9], [24], [26]).
Mossop J refused the adjournment and dismissed the application for leave to appeal with costs. The reasons focus on the narrow question of whether the interlocutory directions should be reviewed immediately, not on finally deciding whether the underlying debt is owed or whether the proceedings as a whole were fair.
The first consideration was the nature of the directions. Section 37E(4) of the Supreme Court Act 1933 (ACT) required leave to appeal because the decision was interlocutory ([6]). Mossop J recalled the warning in In re the Will of FB Gilbert (deceased) that appellate interference with first-instance procedural decisions must be kept within tight limits, or litigation may be delayed and costs increased ([6]). He said that principle applied in this case ([7]).
The directions also involved an exercise of discretion. Mossop J said that case-management and timetabling decisions are reviewed under House v The King, rather than by asking whether the Court of Appeal would itself have made the same or a “correct” decision ([8]). The question was whether a sufficient error in the exercise of discretion had been exposed.
Mossop J considered the primary judge’s task difficult. The evidence about Ms Shearman’s psychiatric condition was substantially connected to the proceedings and her decision to conduct them personally. At the same time, the case had been underway for a long period and was near completion. A fair outcome had to account for both defendants and the plaintiff. The primary judge had engaged with those complexities, particularly in paragraphs [28]–[32] of the primary judge’s reasons, and the directions were within the range of decisions open to him. The proposed appeal material did not sufficiently identify a House v The King error ([12]).
A second consideration was that the defendants proposed to rely on material beyond what had been before the primary judge, including events after the directions were made. Mossop J considered that later evidence could be put before the primary judge in an application to vary the directions. Interlocutory case-management directions can be changed if later circumstances justify a change. The judge already managing the proceeding was, in Mossop J’s view, the more appropriate person to assess new evidence about the case timetable ([13]). This was a case-management rationale, not a decision about whether any particular future variation would be granted.
Third, the evidence did not establish that the defendants were unable to take part in any way. Mossop J observed that Ms Shearman had prepared substantial documents promptly after the primary judge’s directions, including the leave application, draft notice of appeal, and affidavit. He considered that this illustrated a degree of capacity to advance submissions and conduct proceedings. He also said the evidence did not establish that the defendants could not engage lawyers if they chose to do so ([14]). Those observations were relevant to the leave application as presented; they were not a general medical finding.
Fourth, the timing of the proposed appeal mattered. The directions required submissions by 20 August 2026 and a hearing on 28 September 2026. Mossop J considered there was no prospect of a three-judge Court of Appeal being constituted to hear the appeal before either date. If the directions were not stayed, the relevant dates would pass before the appeal could be heard. If they were stayed, the stay would have the same practical effect as allowing the appeal, because the directions would be ineffective during the period in which they were meant to operate ([15]). The Court therefore considered that leave should be granted only if truly necessary in those circumstances.
Finally, Mossop J considered that any relevant error could be raised after the proceedings reached a final decision. Relying on Gerlach v Clifton Bricks Pty Ltd, he explained that an interlocutory order can be challenged on an appeal from final orders if it affected the final result ([16]–[17]). If the directions ultimately denied procedural fairness in a way that affected the final result, or if the conduct of the proceedings otherwise produced a miscarriage of justice, the issue could be raised in an appeal from the final decision ([17]). That possibility weighed against fragmenting the litigation with an immediate appeal.
The adjournment request was assessed separately. Mossop J accepted that the defendants should have a fair opportunity to present their case, but said that fairness had to be considered alongside the plaintiff’s entitlement to have its case determined ([23]). The defendants had provided an extensive affidavit and draft appeal documents, and the affidavit was admitted without objection. They had not filed the directed written submissions. The Court also had no explanation of what additional submissions would have been made, and the plaintiff’s oral submissions were brief and confined to its written case ([24]–[28]). Further delay would have left the parties uncertain about their obligations under the existing timetable ([29]). The Court also regarded the leave application as a clear case for refusal ([30]).
The judgment did not announce a new test for interlocutory appeals. It applied established principles to a particular case-management dispute.
The statutory starting point was s 37E(4) of the Supreme Court Act 1933 (ACT): leave was necessary because the directions were interlocutory ([6]). The judgment then drew on the established caution against allowing routine interlocutory decisions about practice and procedure to generate lengthy appeals. Mossop J quoted In re the Will of FB Gilbert for the proposition that unrestricted intervention could cause delay and added costs ([6]–[7]).
For discretionary directions, the judgment identified House v The King as the applicable framework. An appellate court does not simply substitute its view of what the timetable should have been. The applicant must expose an error in the exercise of discretion of the relevant kind. In this case, Mossop J found no sufficiently demonstrated error ([8], [12]).
The judgment also applied the approach to interlocutory orders described in Gerlach v Clifton Bricks Pty Ltd. It recognised that interlocutory orders can affect substantive rights, but that requiring an immediate appeal from every such order could multiply and fragment proceedings. The formulation relied on by Mossop J was that an appellate court can correct an interlocutory order on appeal from the final order where the interlocutory order affected the final result ([16]). Applied to the Shearmans’ allegations, that meant that an asserted denial of procedural fairness could be raised later if it affected the final result, or if the conduct of the proceedings otherwise involved a miscarriage of justice ([17]).
The judgment’s practical contribution is its combined application of those principles to directions with near-term deadlines. It considered whether an appeal could be heard in time, what a stay would do to the timetable, whether later evidence could be considered by the primary judge, and whether the alleged issues could be addressed on an appeal from final orders ([13], [15]–[17]). It does not purport to decide that every interlocutory procedural complaint can wait until final judgment, nor that every case-management order should be left undisturbed. Its reasoning concerns the leave application and circumstances described in the judgment.
At [6], Mossop J adopted the warning that a “tight rein” must be kept on appeals from procedural decisions. In plain English, the appellate process should not routinely interrupt the trial judge’s management of a case. The concern identified was that repeated challenges can delay the proceeding and increase costs.
At [8], Mossop J said case-management directions are reviewed under House v The King, not by asking whether the appellate court thinks they were “correct”. In plain English, the issue is whether the primary judge made a relevant discretionary error, not whether another judge might have chosen a different timetable.
At [12], Mossop J described the competing considerations confronting the primary judge: Ms Shearman’s health, the long-running and nearly completed case, and fairness to both sides. He considered that the primary judge’s decision was open and that no sufficient error had been shown. In plain English, the existence of difficult competing considerations did not, by itself, demonstrate that the directions were legally flawed.
At [13], Mossop J said that case-management decisions arising from new evidence are more appropriately made by the trial judge, who knows the case and is responsible for bringing it to a conclusion. In plain English, if circumstances change after a timetable is set, the judgment points to the judge managing the proceeding as the appropriate decision-maker on whether the timetable should change.
At [15], the Court explained the practical difficulty with leave. Without a stay, the deadlines could expire before an appeal was heard. With a stay, the directions would be made ineffective during the relevant period, producing the practical effect of allowing the appeal. In plain English, either course risked making the appeal pointless or giving the applicants the practical result they sought before the appeal was determined.
At [17], Mossop J said that an alleged denial of procedural fairness could be raised on appeal from the final decision if it affected the result, or if there was otherwise a miscarriage of justice. In plain English, the judgment preserved a possible later challenge, but connected it to the effect of the alleged error on the final outcome or to a miscarriage of justice.
The judgment is most relevant to applications seeking immediate appellate review of interlocutory directions about the conduct or timetable of an ongoing trial. The specific directions here set a date for written submissions and listed a hearing for final oral submissions ([1]). The Court treated them as discretionary procedural decisions ([8]).
The decision also addresses a case where the applicant seeks to rely on later evidence about changed circumstances. Mossop J considered that such evidence could be presented to the primary judge through an application to vary the directions, because interlocutory case-management orders may be changed when circumstances warrant ([13]). The judgment therefore highlights the significance of whether the asserted change concerns management of the ongoing case and can be evaluated by the judge already conducting it.
Another relevant pattern is where the appeal process cannot practically occur before the challenged directions take effect. Here, the deadlines were close, and the Court considered that a three-judge appeal could not be heard before them. The possible need for a stay gave the proposed appeal a potentially decisive practical effect ([15]). This reasoning is tied to the dates and appellate scheduling circumstances stated in the judgment.
The judgment also concerns an applicant alleging that procedural unfairness in the ongoing case may affect the final result. Mossop J recognised that such a complaint could potentially be raised after final orders, if the required connection to the outcome or a miscarriage of justice were established ([17]). It does not decide whether the Shearmans had in fact suffered procedural unfairness in the underlying proceedings.
Finally, the decision addresses an adjournment request made because a self-represented litigant said she was unable to attend for medical reasons. The Court considered the filed material, the missed written-submission direction, the absence of an explanation of further submissions, the respondent’s concise oral submissions, and the effect of delay on the parties’ obligations ([24]–[30]). The judgment’s conclusion on adjournment arose from that combination of circumstances and should not be detached from it.
The supplied judgment contains no discussion of later decisions applying, distinguishing, or departing from Shearman v Classic Constructions (Aust) Pty Ltd. The case was decided on 7 August 2026, and the text supplied here does not identify any subsequent judicial treatment. It would therefore be unsupported to describe how later courts have treated this decision.
The judgment itself refers to earlier authorities. In re the Will of FB Gilbert is cited for the caution against appellate interference with procedural orders ([6]). House v The King supplies the discretionary review framework applied to the primary judge’s directions ([8], [12]). Gerlach v Clifton Bricks Pty Ltd is relied on for the proposition that an interlocutory order affecting the final result can be challenged in an appeal from final orders ([16]–[17]). Those are the authorities considered in this judgment, not evidence of later treatment of Shearman.
The judgment does not decide whether the primary judge’s directions ultimately denied the Shearmans procedural fairness. Mossop J expressly framed that as a possibility that might be raised in an appeal from the final decision if the alleged denial affected the result, or if there were otherwise a miscarriage of justice ([17]). The final effect of the directions therefore remained unresolved.
Nor does the judgment decide whether changed medical or other evidence would justify varying the timetable. It says that later evidence could be put to the primary judge in an application to vary the orders, and that the primary judge was the appropriate person to consider such case-management material ([13]). It does not predict the outcome of any such application.
The judgment also does not determine the merits of the building company’s debt claim or the merits of the defendants’ extensive allegations about document production, witnesses, exhibits, or the court book. Those matters are summarised as subjects raised in Ms Shearman’s affidavit, not adjudicated in this leave decision ([10]).
The precise limits of the reasoning on adjournment are also fact-dependent. The Court gave seven reasons for proceeding, including the materials already filed, the absence of directed submissions, and the uncertainty further delay would create ([24]–[30]). It did not establish that a litigant’s medical inability to attend will always be insufficient to justify an adjournment.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Shearman v Classic Constructions (Aust) Pty Ltd Citation: [2026] ACTCA 24 Hearing Date: 7 August 2026 Decision Date: 7 August 2026 Before: Mossop J Decision: (1) The application for leave to appeal dated 25 June 2026 is dismissed with costs. Catchwords: PRACTICE AND PROCEDURE – APPEAL – Leave to appeal from interlocutory judgment – where orders sought to be appealed were discretionary directions – where no House v The King errors articulated – where orders sought to be appealed could be raised on appeal from a final decision or through application to vary orders heard by primary judge – where granting leave to appeal would have the practical effect of deciding the appeal – application dismissed with costs Legislation Cited: Supreme Court Act 1933 (ACT), s 37E(4) Cases Cited: Classic Constructions (Aust) Pty Ltd v Shearman (No 9) [2026] ACTSC 200 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 House v The King [1936] HCA 40; 55 CLR 499 In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 Parties: Debra Shearman (First Applicant) Leigh Shearman (Second Applicant) Classic Constructions (Aust) Pty Ltd (Respondent) Representation: Counsel No appearance (First and Second Applicant) WDB Buckland (Respondent) Solicitors Self-represented (First and Second Applicant) MV Law (Respondent) File Number: ACTCA 28 of 2026 Decision Under Appeal: Court: ACT Supreme Court Before: Muller J Date of Decision: 18 June 2026 Case Title: Classic Constructions (Aust) Pty Ltd v Shearman (No 9) Citation: [2026] ACTSC 200 Court File Number: SC 417 of 2022 MOSSOP J: Introduction
This is an application for leave to appeal from certain directions made by Muller J (the primary judge). Those directions require the applicants for leave to appeal to file and serve written submissions by 20 August 2026 and also list the matter for hearing of final oral submissions on a date to be fixed. The date has now been fixed by the primary judge as 28 September 2026.
The primary judge gave written reasons for the orders that he made: Classic Constructions (Aust) Pty Ltd v Shearman (No 9) [2026] ACTSC 200. Those written reasons outlined the extensive procedural history of the proceedings (at [1]-[11]), which I adopt and will not recapitulate in these reasons. In these reasons, I will refer to the parties by reference to their role in the underlying proceedings. The applicants for leave to appeal, Ms Shearman and Mr Shearman, are the defendants in those proceedings. The respondent to the application for leave to appeal is the plaintiff in those proceedings.
The underlying proceedings are brought by the plaintiff, a building company, for the recovery of a debt said to be owed by the defendants under a building contract. The defendants have, except for a limited period, represented themselves, with Ms Shearman representing Mr Shearman in the proceedings. The difficulty confronting the primary judge was that Ms Shearman had ceased, towards the end of the hearing, to participate, and there was medical evidence that she was not fit to conduct the proceedings. The orders made by the primary judge were designed to accommodate the recovery time identified in the medical evidence before requiring written submissions to be filed and an oral hearing for the making of final submissions.
The proposed grounds of appeal are extensive. The draft notice of appeal makes it clear that very substantial further evidence is sought to be led on the appeal. Quite a number of the grounds of appeal do not specifically relate to the orders in question.
The defendants did not appear at the hearing of the application for leave to appeal and by correspondence sent to my chambers sought to have the application adjourned. For reasons which I give later, I decline to adjourn the application. Further, I have decided that it is not a case in which leave to appeal should be granted. It is appropriate to explain the applicable principles and why this is a clear case in which leave to appeal should be refused before returning to explain why I decline to adjourn the application. Interlocutory appeals on matters of practice and procedure
Because the decision appealed from is interlocutory, leave to appeal is required: Supreme Court Act 1933 (ACT) s 37E(4). The authorities establish that a tight rein must be kept upon interlocutory appeals from decisions on questions of practice and procedure. The proposition is most cogently expressed in In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323: [If] a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases would be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercise of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
That principle is applicable in a case such as the present.
Further, it must be noted that, having regard to the fact that case management and timetabling directions are inherently discretionary, such decisions are reviewable in accordance with House v The King [1936] HCA 40; 55 CLR 499, rather than by reference to whether the Court of Appeal considers that they are “correct” or not.
Reasons for refusal of leave to appeal
Notwithstanding the defendants’ failure to appear, I admitted the affidavit of Ms Shearman dated 25 June 2026 into evidence. I also had regard to the terms of the draft notice of appeal lodged with the application. The application itself lists, in addition to these two documents, seven other categories of documents which are said to support the application for leave. All except for one of these appear to be documents filed in the underlying proceedings. Having regard to the nature of an application for leave to appeal, it would not have been appropriate to admit this volume of material for the purposes of the application. The final category referred to in the application is any outline of submissions or written submissions. Directions were made requiring the defendants to file and serve such submissions, but they did not do so.
The affidavit relied upon is extensive. It contains 152 paragraphs and 330 pages in an exhibit book. In summary, the affidavit addresses the defendants’ concerns about Ms Shearman’s medical incapacity, their loss of legal representation, some issues to do with the court book in the proceedings below, issues about late or incomplete document production in the proceedings below, issues to do with witnesses and exhibits, “reasonable adjustments” to take account of Ms Shearman’s medical incapacity and an asserted practical inability to obtain a real and effective opportunity to be heard in accordance with the orders appealed from.
As I have indicated, this is a clear case in which leave to appeal should be refused. That is for five reasons which, in combination, compel that result.
First, the case management issue faced by the primary judge was a difficult one. On the one hand, there was evidence of Ms Shearman’s psychiatric condition which was substantially related to the proceedings and her decision to conduct them personally. On the other hand, there was a need to make progress with a case which had been going on for a long time, and which was close to completion. There was a need to bring the case to a conclusion in a manner which was procedurally fair, not only to the defendants, but also to the plaintiff. The primary judge appears to have engaged with the complexities of the situation, particularly at [28]-[32], and exercised his discretion in a manner which was open to him. Because of the discretionary nature of the decision, a House v The King error would be required. No such error is sufficiently exposed by the evidence, the grounds of appeal or the contentions in the affidavit in support of the application to warrant a grant of leave to appeal.
Second, to the extent to which the defendants seek, on an appeal, to adduce evidence going beyond what was before the primary judge and, in particular, to adduce evidence of events subsequent to the primary judge’s orders, it would be open to the defendants to adduce that further material before the primary judge on an application to vary the orders already made. It is in the nature of interlocutory case management orders that they are open to be changed if circumstances have arisen after their making that would warrant their variation. It is more appropriate that case management decisions arising from new evidence be made by the trial judge, who is familiar with the matter and responsible for bringing it to a conclusion, rather than have such a decision transferred to the Court of Appeal.
Refusal of adjournment
It is now necessary to return to the fact that the defendants did not appear today at the hearing of the application. By email sent at 8:12am this morning, Ms Shearman requested that the hearing be adjourned due to her current medical incapacity. She indicated that she was currently admitted to a mental health facility receiving treatment. She indicated that she was unable to attend the hearing today, either in person or by audiovisual link. She indicated that she had previously represented both herself and her husband.
It must be noted that the primary judge referred to the fact that Mr Shearman played no active part in the proceedings was “as a consequence of his health issues”: Classic Constructions (No 9) at [3].
In her email, Ms Shearman said that proceeding in her absence “would raise serious procedural fairness concerns”. She sought an adjournment “to allow me to obtain a further assessment of [her] capacity and to provide the court with updated medical information when available”. She indicated that would be available “within the next week” and that she was awaiting confirmation of her discharge date from the private hospital where she was being treated.
I did not consider it appropriate to adjourn the application. I accepted that a fair opportunity should be afforded to the defendants to present their case in support of the grant of leave to appeal. What that involves must be determined in all the circumstances of the case, including the entitlement of the plaintiff to have its case determined. I did not consider that the disposition of the application for leave to appeal should be adjourned to a future date or that it would be unfair in the circumstances to proceed in the absence of the defendants. That was for the following reasons.
First, the defendants had the opportunity to present the factual and legal basis for their application in their application for leave to appeal, draft notice of appeal, and affidavit in support. Notably, the affidavit in support of the application contained 152 paragraphs and was in the nature of submissions. This material was admitted at the hearing without objection.
Second, the medical evidence did not explain why Ms Shearman had the capacity to prepare the material required for the application for leave to appeal but was unable to appear, even by audiovisual link, for the purposes of the hearing of the appeal or, alternatively, engage lawyers to act on behalf of the defendants for the purposes of the application.
Third, the defendants had the opportunity, and were directed to, file and serve written submissions limited to not more than five pages by 24 July 2026, but did not take up that opportunity.
Fourth, there was no explanation as to what additional submissions would have been put forward in relation to the application for leave to appeal, even in circumstances where the written submissions of the plaintiff served in accordance with the directions of the court were available to the defendants well in advance of the hearing.
I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate: Date:
Shearman
Classic Constructions (Aust) Pty Ltd
The application for leave to appeal dated 25 June 2026 was dismissed with costs ([31]).
Third, to the extent that the defendants rely upon medical evidence as to Ms Shearman’s incapacity to conduct proceedings on behalf of the defendants, she does appear to still retain a degree of capacity to advance submissions and otherwise conduct proceedings herself. That is illustrated by her capacity to prepare and file the application for leave to appeal, draft notice of appeal, and affidavit in support, each of which are substantial documents which she has prepared promptly after the primary judge made his directions. Further, the evidence does not establish that the defendants are unable to engage lawyers to represent them if they chose to do so.
Fourth, if leave to appeal was granted, the granting of leave to appeal itself would either be ineffective to achieve the outcomes sought by the defendants or alternatively would itself determine the appeal in their favour. Those propositions require some explanation. The orders appealed from require the defendants to file and serve written submissions addressing particular issues by 20 August 2026 and, as a result of the orders, final submissions have been listed for hearing on 28 September 2026. Having regard to the nature of the case and other cases before the Supreme Court and Court of Appeal, there is no prospect of a Court of Appeal comprising three judges being constituted in order to hear and determine an appeal prior to 20 August 2026 or 28 September 2026. In those circumstances, if leave to appeal was granted, but the orders the subject of the appeal were not stayed, then the appeal would be rendered nugatory by the fact that the time for compliance and the hearing would have passed prior to the hearing of the appeal. If leave to appeal was granted but the orders were stayed, then the grant of the stay would have the same effect as the allowing of the appeal, because the orders would be rendered ineffective during the period when compliance was required. In those circumstances, a cautious approach should be taken to the application for leave to appeal and leave only granted where it is truly necessary.
Fifth, following on from the fourth point, even if, contrary to what I have said earlier, the circumstances disclosed some arguable House v The King error, this would be a case in which it is clearly not necessary to grant leave to appeal at this stage. That is because, as the High Court made clear in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [4]-[7] and [51], any relevant interlocutory error could be challenged on appeal from a final order. In that case, a majority of the court described the potential to rely upon an interlocutory error in an appeal from final orders as follows ([4]-[6]): 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. … 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). (Footnotes omitted.)
It is clear from the grounds of appeal in the draft notice of appeal and the terms of the affidavit in support of the present application that the defendants wish to assert that there have been substantial irregularities and unfairness in the manner in which the proceedings have been conducted to date and the manner in which it is anticipated they will be brought to a conclusion. If it ultimately turned out that the effect of the orders made by the primary judge was to deny procedural fairness to the defendants, and that denial affected the final result, or there was otherwise a miscarriage of justice in the conduct of proceedings, then that would be a matter that they would be entitled to raise in any appeal from the final decision in the proceedings. That is a further factor tending against a grant of leave to appeal at this stage, having regard to the desirability of avoiding fragmentation and delay in proceedings.
For those reasons, the application for leave to appeal should be dismissed.
The plaintiff sought its costs of the application for leave to appeal. In my view, the application for leave having been brought and the plaintiff having incurred costs in opposing it, the case is one in which it is appropriate that costs follow the event and there is no reason to depart from that course or defer consideration of the issue.
Fifth, the oral submissions made on behalf of the plaintiff were brief and confined to matters already raised in its written submissions.
Sixth, the further adjournment of the application would leave the parties uncertain as to their obligations pursuant to the orders, which required the filing and service of submissions by 20 August 2026 and a hearing of oral submissions on 28 September 2026.
Seventh, for the reasons given earlier, the case was a very clear one in which leave to appeal should be refused. Order
The order of the Court is: (1) The application for leave to appeal dated 25 June 2026 is dismissed with costs.