The Court held that r 35.2(3) of the UCPR, which permits a court to allow 'use' of an affidavit where a deponent does not attend for cross-examination, operates only as a procedural gateway and does not override the rules of evidence in the Evidence Act 1995 (NSW), including the hearsay rule; parties may still object to the affidavit's contents on evidentiary grounds at trial. The Court refused to sever claims against different defendant groups where there was significant factual overlap, risk of inconsistent findings, and potentially duplicative remedies. The Court also refused to vacate a two-week trial despite a key defendant's chronic illness rendering him unfit to attend or give evidence, finding no basis to expect improvement and weighing the interests of timely disposal of proceedings on foot since 2021.
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