McCall v SMRT Log Pty Ltd

[2026] NSWCA 191

NSW Court of Appeal

Built by Barristers,
For Australian Law.

1. CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal against interlocutory judgment or order — second respondent significantly ill — participation in court proceedings likely to aggravate medical conditions — primary judge made order under UCPR r 35.2(3) entitling parties to rely on second respondent’s affidavit without him being available for cross-examination — hearing adjourned until April 2027 and affidavit not yet read or tendered — applicant sought leave to appeal against order — no issue of principle — primary judge adequately considered alternative of cross-examination via audio-visual link — application premature in circumstances

An application for leave to appeal an interlocutory order under UCPR r 35.2(3) permitting use of an affidavit without cross-examination may be refused as premature where the affidavit has not yet been read or tendered, its admissibility and weight remain undetermined, and the ruling can be revisited before the resumed hearing or challenged on appeal from final judgment.
Where a primary judge's reasons on an interlocutory application are delivered promptly, they should not be scrutinised over-zealously for error, by analogy with the approach to ex tempore judgments.
A complaint that a trial judge gave insufficient weight to a relevant consideration in exercising a discretion — as distinct from failing to consider it at all — does not establish House v The King error.