CHULUNG -v- HOAR [2026] WASC 275

Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : CHULUNG -v- HOAR [2026] WASC 275 CORAM : LUNDBERG J HEARD : 3 JULY 2026 DELIVERED : 6 JULY 2026 FILE NO/S : CIV 2494 of 2024 BETWEEN : DONALD ARTHUR CHULUNG First Plaintiff ROZANNE MARIE CHULUNG Second Plaintiff AND CALLAN DAVID ANTONY HOAR AS EXECUTOR OF THE ESTATE OF DONALD EDGAR HOAR First Defendant ENIPEND PTY LIMITED (ACN 009 631 583) AS TRUSTEE OF THE LINCOLN HOARD TRUST Second Defendant SIMON MARK BERNARD HOAR AS BENEFICIARY OF THE ESTATE OF DONALD EDGAR HOAR Third Defendant DONOVAN JAMES PATRICK HOAR AS BENEFICIARY OF THE ESTATE OF DONALD EDGAR HOAR Fourth Defendant -- 1 of 21 -- Page 2 BENJAMIN ALBERT EDWARD HOAR AS BENEFICIARY OF THE ESTATE OF DONALD EDGAR HOAR Fifth Defendant CALLAN DAVID ANTONY HOAR AS BENEFICIARY OF THE ESTATE OF DONALD EDGAR HOAR Sixth Defendant Catchwords: Practice and procedure - Previous orders made for the determination of a preliminary issue - Orders made by consent - Application by plaintiffs to discharge previous orders such that the trial be listed for determination on all issues - Turns on own facts Evidence - Application by plaintiffs to give evidence at trial by video-link - Whether in interests of justice that both plaintiffs give evidence from remote location - Turns on own facts Legislation: Acts Amendment (Justice) Act 2008 (WA) Evidence Act 1906 (WA), s 121 Family Provision Act 1972 (WA), s 6, s 7 Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 28, O 32 Result: Application to discharge consent order granted and orders made for trial to be heard on all issues. Application to have plaintiffs give evidence by video-link refused. -- 2 of 21 -- Page 3 Representation: Counsel: First Plaintiff : A Spencer Second Plaintiff : A Spencer First Defendant : C A Gregson Second Defendant : N A Hope Third Defendant : C A Gregson Fourth Defendant : C A Gregson Fifth Defendant : C A Gregson Sixth Defendant : C A Gregson Solicitors: First Plaintiff : Rubicon Law Second Plaintiff : Rubicon Law First Defendant : Gregson & Associates Second Defendant : Forbes Kirby Third Defendant : Gregson & Associates Fourth Defendant : Gregson & Associates Fifth Defendant : Gregson & Associates Sixth Defendant : Gregson & Associates Case(s) referred to in decision(s): Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204 Balla v Roberto Bei [2020] WASC 348 Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 Furesh v Schor [2013] WASC 231 Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 5] [2010] WASC 62 -- 3 of 21 -- Page 4 Table of Contents Introduction ................................................................................................................................ 5 The likely nature of the issues and evidence at trial ................................................................... 5 Application to discharge the consent order ................................................................................ 8 Background to the application ................................................................................................ 8 Directions hearing on 4 March 2026 ...................................................................................... 9 Strategic conference ............................................................................................................... 9 Relevant principles ............................................................................................................... 11 Disposition ............................................................................................................................ 12 Application to give evidence by videolink ............................................................................... 14 The application ..................................................................................................................... 14 Legislative framework and relevant principles .................................................................... 15 Disposition ............................................................................................................................ 17 Conclusion and orders .............................................................................................................. 20 -- 4 of 21 -- [2026] WASC 275 LUNDBERG J Page 5 LUNDBERG J: Introduction 1 These reasons concern interlocutory applications brought in a proceeding in which the sibling plaintiffs, by way of originating summons, seek relief pursuant to s 6(1) of the Family Provision Act 1972 (WA) (FPA). The proceeding is brought on the basis that, it is alleged, the deceased did not by his will make adequate provision from his estate for their proper maintenance, support, education or advancement in life. The question of the plaintiffs' standing (that is, parentage) is in issue in the proceedings. 2 These reasons concern the applications made by the plaintiffs in the course of the strategic conference held on 3 July 2026. In summary, the applications were as follows: (a) The first application, which had been foreshadowed at an earlier directions hearing, was for an order that a previous consent order made by a Registrar on 11 August 2025 be discharged. By that consent order, the court directed that the issue of parentage be determined as a preliminary issue, pursuant to O 32 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC). The plaintiffs have now sought an order that all issues in the proceeding be determined at the trial in September 2026. The defendants opposed this course and sought to persuade the court that the consent order should not be disturbed. (b) The second application was for an order that both plaintiffs be permitted to give evidence at trial by videolink, pursuant to s 121 of the Evidence Act 1906 (WA) (Evidence Act). 3 I indicated at the conference I would grant the first application and refuse the second, and would provide fulsome reasons, which now follow. The likely nature of the issues and evidence at trial 4 For the purposes of addressing both applications, it is relevant to understand the nature of the issues arising at trial and the likely evidence to be led. 5 Consistent with the typical approach to matters such as this, the proceedings have been conducted on affidavit, rather than on pleadings. -- 5 of 21 -- [2026] WASC 275 LUNDBERG J Page 6 The parties have to date filed a number of affidavits. The parties are content for those affidavits to be adopted as their proposed evidence in chief at trial. 6 It appears to be common ground from the affidavits that no provision was made in the deceased's will for either of the plaintiffs, who assert in this proceeding they are both children of the deceased and have standing to bring the proceedings within the terms of s 7(1) of the FPA. In brief terms, the plaintiffs assert they are the children of the deceased's relationship with their mother in the 1960s, in Kununurra. The plaintiffs seek orders that a substantial provision be made for them from the assets of the deceased's estate. 7 The deceased's will left the estate to the second to sixth defendants who are the children of the deceased from his marriage to Mrs Frances Elkins. Those children were born somewhat later than the plaintiffs, namely between 1975 and 1984. The sixth defendant is also the first defendant, in his capacity as the executor of the will. 8 The substantive issues arising in the proceedings will be as follows:1 (a) whether the first plaintiff and the second plaintiff are children of the deceased so as to be persons entitled to make a claim under s 7(1)(c) of the FPA; (b) whether the disposition of the deceased's estate by his will was not such as to make adequate provision for the plaintiffs (if they are found to be children of the deceased) for their proper maintenance or support in life; and (c) if the answer to (b) is yes, what would be adequate provision for the proper maintenance or support of the plaintiffs? 9 The evidence filed to date largely addresses the parentage issue, although evidence as to the assets and liabilities of the estate has been adduced as well. Further evidence will need to be led by the defendants, should they wish to do so, concerning the additional issues in the proceeding. 10 On the parentage issue, the plaintiffs' claim will, to a significant extent, be advanced on the basis of their oral evidence as to recollections and conversations of matters said to have occurred between the 1960s and the 2010s. The plaintiffs' mother passed away in 2018, so no direct 1 Adopting the language of Smith J in Balla v Roberto Bei [2020] WASC 348 [84]. -- 6 of 21 -- [2026] WASC 275 LUNDBERG J Page 7 evidence can be led from her. I understand it is intended for hearsay evidence to be led in this regard. 11 There is some documentary material which is said to support the parentage claim, sourced from the files held by the Department of Native Welfare and elsewhere. However, that material is limited and I understand the defendants will dispute the effect of that material. 12 The plaintiffs did raise, at one point, the prospect of the defendants submitting to DNA testing, in order to resolve the parentage issue. The defendants rejected this approach, asserting they were under no obligation to submit to such testing and did not consent to testing in this regard. Further, the defendants submitted the court had no power to make an order to this effect, relying on the decision of the Court of Appeal in Furesh v Schor.2 No application appears has been made for orders under O 28 r 1 RSC in this regard. In short, no DNA evidence is proposed to be led at trial. 13 As matters stand, there are likely to be two witnesses called by the plaintiffs, being both plaintiffs, and at least four of the defendants may testify. Assuming the second defendant adopts an active position at trial on some of the issues, there may be seven witnesses called at trial in total. In general terms, the documentary evidence is not likely to be substantial, based on the affidavit evidence filed so far. 14 The present case is one in which the credibility and reliability of the two plaintiffs is a central feature of the case, particularly as to the issue of parentage which will be an important and contested issue at trial. To the extent the evidence refers to meetings and conversations with the defendants, the credibility and reliability of the evidence of the defendants will also likely be contested by the plaintiffs. 15 To add to the foregoing, the court file reveals that the first plaintiff has sworn affidavits in which he has accepted there were discrepancies in the matters to which he deposed in his earlier affidavit material. I refer to the matters addressed in the first plaintiff's affidavit sworn on 16 February 2026 at [4] - [11]. These discrepancies concern: (a) whether the first plaintiff had met the second defendant in 2013, as he first stated, or between 1997 and 1999 as appears in the correcting affidavit; and 2 Furesh v Schor [2013] WASC 231. -- 7 of 21 -- [2026] WASC 275 LUNDBERG J Page 8 (b) whether the first plaintiff had met the deceased's wife in 2014, as he first stated, or in 2002 or 2003 as appears in the correcting affidavit. 16 Accordingly, the parentage issue will require a close analysis by the court of the oral evidence of all witnesses called on that question. Application to discharge the consent order Background to the application 17 The usual position is that all issues of fact and law in dispute in an action should be tried together.3 18 On 11 August 2025, a Registrar ordered that a preliminary issue in the proceedings be heard and determined, being the first of the issues identified at [8] above. The order was made with the consent of the parties, in the following terms: The matter be referred to the Master or a Judge for the determination of whether, for the purposes of s 7(1)(c) of the Family Provision Act 1972 (WA), the plaintiffs are children of the deceased ("Preliminary Issue"). 19 The order was made in the exercise of the power in O 32 r 4 and r 5 of the RSC, which provide as follows: 4. Time of trial of questions or issues The Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by the pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before at or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated. 5. Issues may be tried differently In any cause or matter the Court may at any time, or from time to time, order that different questions or issues arising therein be tried at different places or by different modes of trial, and that one or more questions or issues be tried before the others. 20 The orders made included a programme for affidavits to be filed by the plaintiffs and the first defendant on the preliminary issue. 3 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 [168] (Kirby and Callinan JJ). -- 8 of 21 -- [2026] WASC 275 LUNDBERG J Page 9 21 Pursuant to those orders, the plaintiffs filed further affidavits on 10 September 2025, their solicitor filed an affidavit on 5 December 2025, and the first plaintiff filed a further affidavit on 16 February 2026. 22 One may have concluded from the orders made that the only parties taking an interest in the preliminary issue were the plaintiffs and the first defendant, recognising that the other defendants were abiding on the preliminary issue.4 However, the first defendant proceeded thereafter to file affidavits sworn by each of the third to fifth defendants (as well as an affidavit sworn by the first defendant himself) in opposition to the preliminary issue. 23 The first defendant (being the executor) had not filed a notice of intention to abide and was adopting an active position in the proceedings on all issues. The first defendant is represented by the same solicitors as the third to sixth defendants. Directions hearing on 4 March 2026 24 At the directions hearing on 4 March 2026, the plaintiffs raised an issue as to whether the order made on 11 August 2025 should be maintained, or whether that order should be discharged, and so whether the matter should be programmed to a final hearing on the basis that all matters in issue are to be tried. 25 That issue was not substantively argued at the directions hearing, although the plaintiffs did advance an informal application to discharge the order. Instead, orders were made to programme the matter to a mediation, following which a strategic conference would be held to resolve the procedural dispute, and to make programming directions for the hearing and determination of the matter. The court also identified provisional trial dates were available in September 2026. Strategic conference 26 The parties filed affidavit evidence ahead of the strategic conference addressing the question of a split trial, together with their respective proposed agenda for the conference. I refer to the affidavit of Mr Savala affirmed on 28 June 2026, filed on behalf of the plaintiffs, and 4 Early in the proceeding, several of the defendants filed notices of intention to abide pursuant to O 12 r 11 of RSC. The third, fourth, fifth and sixth defendants filed notices of intention to abide on 11 February 2025 in terms that each of them did not intend to take part in the proceedings 'on the preliminary issue of standing (parentage) only' and would accept any order made by the court other than as to costs. The second defendant, who is separately represented, filed a notice in the same terms on 12 March 2025. When these notices were filed, the court had not yet made any order for determination of a preliminary issue. -- 9 of 21 -- [2026] WASC 275 LUNDBERG J Page 10 the affidavit of Mr Gregson sworn on 2 July 2026 on behalf of the first defendant. 27 The plaintiffs' position was that unification of the issues in the proceeding was appropriate, and the earlier order should be discharged. The plaintiffs submitted that the legal costs differential in preparing for and attending a trial of all issues, as compared to a trial confined to only the issue of standing, was likely to be insignificant. The plaintiffs' counsel sketched out a trial plan of some three days, which it was said would allow for the evidence to be concluded comfortably, together with submissions. My own impression was that three days would be too compressed and create a risk the matter would be part-heard. 28 The plaintiffs ultimately submitted that the programming of the proceedings in the current manner would likely lead to inefficiencies, delays and greater costs for the parties (particularly when one factors in the possibility of appellate review and the fragmentation of the litigation process). 29 Counsel for the first defendant, supported by counsel for the second defendant, disputed the plaintiffs' characterisation of the perceived inefficiencies. Further, I understand the defendants to be concerned there would likely be additional costs involved in one, longer trial of all issues, relative to an initial hearing of the parentage issue. Further still, the defendants pointed to the poor financial position of the plaintiffs and the costs recovery risk the defendants will face if they are successful in defending the claims. As the costs of the litigation process continue to accumulate, the greater will be the quantum of adverse costs orders which the defendants say they will be unable to recover (or there is a risk they will be unable to recover). Counsel for the second defendant, Ms Hope, described the costs recovery risk in the proceeding as being 'asymmetric' as between the plaintiffs, on the one hand, and the defendants, on the other. 30 The costs issue is particularly significant for the second defendant in that it (being a corporate trustee) would be required to incur very minimal costs on the preliminary issue (given the second defendant indicated it would abide on the parentage issue), but far greater costs if required to defend all issues at trial. 31 In response to these submissions, the plaintiffs noted there was no evidence presented by the defendants as to the relative impact of the costs of this litigation on them, in terms of their overall asset position. Counsel -- 10 of 21 -- [2026] WASC 275 LUNDBERG J Page 11 for the plaintiffs invited the court to assess the quantum of the adverse costs accordingly, which would be spread across five different defendants, and in the absence of any evidence that these costs were materially significant to the defendants. Relevant principles 32 The court has an inherent jurisdiction to set aside the orders in question. The orders are procedural in nature, but in any event, there is jurisdiction to set aside orders of a substantive nature.5 Undoubtedly, the court also has jurisdiction to set aside consent orders.6 33 In assessing whether to set aside earlier orders, it is necessary for the court to consider the interests of justice, which will encompass the efficient management of the interlocutory processes involved in civil litigation.7 The goal and objects in O 1 r 4A and 4B of the RSC will be relevant to the assessment to be made by the court. 34 The court should recognise that the parties will have approached the subject litigation on the expectation that court orders will be enforced and not lightly be undone. In the case of orders for a split trial, it can be expected that the litigants will have approached the proceedings in a particular manner, made forensic decisions, assessed their costs exposure, and may have made concessions based on the understood course of the proceedings. These matters may be relevant to consider when faced with an application to discharge earlier orders, particularly those made with the consent of all parties. 35 In the context of an application to discharge an order for a split trial, it may be particularly relevant for the court to consider: (a) whether there has been a change in position in the litigation which justifies or explains the application to unify all issues at one hearing; (b) whether there is some material prejudice to the party seeking to discharge the order which was not apparent when the earlier order was made, which is to be balanced against the asserted prejudice which the opposing party might suffer if the split trial orders are discharged; and 5 Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115 [9] (Corboy J); Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23] - [24] (Steytler P) and [70] (Pullin JA). 6 Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204. 7 Commonwealth Bank of Australia Ltd v Saraceni [11] (Corboy J). -- 11 of 21 -- [2026] WASC 275 LUNDBERG J Page 12 (c) whether the adherence to the split trial orders, and the maintenance of the decision to fragment the proceedings, can be seen by the court to give rise to the unacceptable risks which are inimical to the just, efficient, timely and cost-effective resolution of the real issues in dispute. Disposition 36 The effect of the order made was to fragment the proceedings. The parties joined in the making of that order. No evidence was led in support of the proposed order and there was no occasion for the court to fulsomely consider the issue. 37 When applications for a split trial, or determination of a preliminary issue, are made in the face of opposition, a court will typically recognise there are compelling reasons for all issues of fact and law to be tried together, but also recognise there may be circumstances in which this is not in the interests of justice. 38 The court will properly have regard to the judicial warnings that the exercise of the power to split a trial should be approached in a cautious manner.8 The determination of an application to fragment proceedings will require a careful balancing of the prospective advantages and disadvantages, bearing in mind the uncertainties of litigation. 39 Ultimately, the decision to be made will be a discretionary one and the discretion will need to be exercised having regard to, and weighing, all the relevant considerations. In exercising the discretion to hear the issues together or separately, the court will have regard to the overriding goals of case management in O 1 r 4A and r 4B of the RSC, including the facilitation of the just, efficient, timely and cost-effective resolution of the real issues in dispute. 40 The parties are now many months further progressed in the proceeding since the consent order was made, with the court having indicated that trial dates in September are available. The plaintiffs are concerned that the programming of these proceedings in the current manner will likely lead to inefficiencies, delays and greater costs for the parties. 41 At the conclusion of the strategic conference, having heard from counsel for the parties, I formed that view that the power to discharge the previous order should be exercised, and the prima facie position that all 8 Tepko Pty Ltd v Water Board [168] - [170] (Kirby and Callinan JJ). -- 12 of 21 -- [2026] WASC 275 LUNDBERG J Page 13 issues are to be determined at one trial should be maintained. In the present case, I formed that view for the following reasons. 42 First, it appeared that the orders may have been made in circumstances in which it was anticipated by the plaintiffs and the court that the only active defendant on the parentage issue was the first defendant. As matters transpired, affidavit evidence was filed by other defendants, albeit through the agency of the first defendant's solicitors and on the basis that the first defendant, as executor, was taking the burden of defending the issue. Nevertheless, it seems possible that the breadth and complexity of the preliminary issue had grown somewhat after the orders were made, meaning the preliminary issue would likely require at least two days of contested evidence. 43 Second, on closer inspection, there is a developing risk that holding a preliminary hearing on the parentage issue could give rise to the dangers spoken of in Tepko and other cases, leading to greater cost and further delays. 44 For example, in the scenario in which the parentage issue is heard at the first trial, and the plaintiffs are unsuccessful, there is a prospect of appellate review being pursued. In the event such an appeal was successful, that might led to a retrial on the parentage issue, or lead to orders being made for the balance of the issues in the litigation to be heard at a second trial. Mapping that scenario out, in terms of time, it might mean that the second trial would not be listed for more than two years after the conclusion of the first trial. An overall result in the proceedings might then not be obtained for some two and a half to three years, assuming there is no cause for further appellate review from the second trial. 45 This scenario can be contrasted with one in which all issues are addressed at a single trial, and appellate review of that decision could then be undertaken on any of those issues. 46 Fragmentation of the litigation process could greatly increase the parties' costs, in my view. 47 Third, a further emerging risk is that the first trial, on the parentage issue, will require the trial judge to make findings as to credibility and reliability. It is possible that such findings might preclude the trial judge from hearing the second of the trials, or at least one party might make application for the trial judge to recuse himself. If the risk eventuates, the proceedings might require two judges to hear the factual material at -- 13 of 21 -- [2026] WASC 275 LUNDBERG J Page 14 first instance. I do not wish to overstate this risk, but it is a relevant matter to consider. 48 Fourth, the use of judicial and administrative resources of the court is a relevant factor. The process of splitting the case will require a judicial officer to prepare two sets of reasons, addressing the parentage issue in the first set of reasons and then the balance of the issues in the second set of reasons. Experience suggests that this process will be more time consuming, and involve a greater draw on the judicial and administrative resources of the court, than one hearing. 49 The number of hearing days required is a relevant matter. My present assessment, having regard to the estimate made by the plaintiffs' counsel, is that the whole trial can be conducted in the course of four days. Splitting the trial into a preliminary issue and then a second hearing which addresses the balance of the issues, is likely to exceed four days in total. 50 The efficiency which a split trial brings is, of course, the prospect that there is no second trial. There will be savings in that regard, if that scenario plays out. Prudence suggests the analysis should build in the risk that the second trial is required, and assess the matter accordingly. 51 Fifth, while the parties had no doubt approached the matter on the faith of the consent order, the plaintiffs had, in March 2026, raised the prospect of unifying all issues. At that time, there was at least a prospect of the matter continuing to trial on all issues, in September 2026. I did not assess the position of the defendants as giving rise to any material prejudice in the event the consent order was discharged. The defendants will be permitted to lead such further evidence as may be needed in advance of the trial, to accommodate a hearing on all issues. 52 For these reasons, I was accordingly, satisfied that the consent order should be discharged, and the trial should proceed on all issues of fact and law. Application to give evidence by videolink The application 53 The plaintiffs sought an order, pursuant to s 121 of the Evidence Act, that both plaintiffs give evidence at the proposed trial by videolink. The plaintiffs relied upon two affidavits from their solicitor, Mr Savala, affirmed on 28 June 2026 and 3 July 2026. -- 14 of 21 -- [2026] WASC 275 LUNDBERG J Page 15 54 The basis advanced for the present application was narrow. The plaintiffs pointed to the financial cost of travelling from Kununurra to Perth for the trial in order to give evidence, and the associated accommodation costs. The costs were estimated by the plaintiffs' solicitors at between $2,000 and $3,500. The plaintiffs are of limited financial means, based on the materials produced to the court, and submit that a requirement for the plaintiffs to give evidence in person at trial, with its attendant costs, would be disproportionate in all the circumstances. 55 The plaintiffs are both in their 60s and are not without the ailments associated with persons of that age. There was, however, no suggestion that travel to Perth was rendered more difficult by any matters of health or, indeed, by any employment considerations or other personal issues. 56 In opposing the application, the defendants emphasised that the plaintiffs are the sole witnesses to be called in support of the plaintiffs' case, and their credibility will be a central issue at trial, particularly on the disputed issue of parentage. The defendants disputed that the costs involved could fairly be characterised as disproportionate, bearing in mind the size of the claim made against the estate of the deceased, among other factors. Legislative framework and relevant principles 57 Section 121 of the Evidence Act provides: 121. WA court may take evidence or receive submission by video link or audio link (1) Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting. (2) The court shall not make such a direction unless satisfied the video link or audio link is available or can reasonably be made available. (2a) The court shall not make such a direction if satisfied the direction is not in the interests of justice. (3) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in this State in accordance -- 15 of 21 -- [2026] WASC 275 LUNDBERG J Page 16 with such a direction, the place shall be taken to be part of the court. (4) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in a participating jurisdiction, the court may exercise in that place any of its powers that the court is permitted, under the law of the jurisdiction, to exercise in that place. 58 The scope of the above provision was examined in some detail by Le Miere J in Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 5],9 an interlocutory decision delivered in the course of the long- running 'Ore Wagons' case in this court. 59 The defendant in that case had applied for the evidence of an 83 year old witness to be given at trial by videolink. The elderly witness resided in Queensland, had health problems, and his travel to Perth was likely to place a substantial physical and mental strain upon him. 60 In resolving the contested application, his Honour noted that s 121 had been amended in 2008 by the Acts Amendment (Justice) Act 2008 (WA). That amending legislation had amended s 121(2) and inserted s 121(2a). Prior to the amendment, the section had provided that the court 'shall not make such a direction unless the court is satisfied that the direction is in the interests of justice'. As his Honour observed, the new subsection reversed this wording, such that an application should be granted unless it was not in the interests of justice to do so. The parliamentary intention to do so was made clear within the Explanatory Memorandum to the Bill. 61 Le Miere J recognised that the provision left the court with a discretion to refuse an application, but the effect was that such applications should be granted unless there was good reason not to do so. 62 His Honour then examined, as relevant to the assessment of the videolink application, the following factors: whether the evidence in question was centrally important to the case, the court's ability to assess the credit of the witness, whether there are technological issues associated with the videolink process, the process of managing documents during cross-examination, the length of the cross- examination in question, and the issue of the health of the witness. These are not exhaustive considerations – they were, however, the factors 9 Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 5] [2010] WASC 62. -- 16 of 21 -- [2026] WASC 275 LUNDBERG J Page 17 identified by the plaintiff in that case as bases for opposition to the application. 63 His Honour ultimately granted the application. First, he concluded that he was not satisfied that a direction that the evidence of the witness be taken by a videolink from Brisbane was not in the interests of justice. Second, his Honour then considered whether or not the discretion should be exercised to make the videolink direction. In that regard, his Honour balanced the relevant features of the case and found that the factors in favour of giving the direction outweighed those against. 64 As to the interests of justice question, his Honour held that the management of documents in cross-examination would place some additional burden on counsel for the plaintiff (who was opposing the application) and concluded that cross-examination of the witness was likely to be long and complex. Further, the witnesses' credit was in issue and his responses to questions put to him and documents shown to him by the cross-examiner would be important. However, in the result, his Honour concluded that none of those matters would cause any significant disadvantage to the court in assessing the evidence of the witness, or cause unfairness to the plaintiff.10 65 As to the exercise of the discretion, his Honour considered that certain matters favoured the witness giving his evidence viva voce in the courtroom including the importance of his evidence, assessment of credit, the management of documents in cross-examination and the likely length of cross-examination. On the other hand, if the direction was refused, Le Miere J noted that the defendant would seek to compel the witness to travel to Perth or would potentially forego his evidence. In the former case, the witness would be subjected to great and unnecessary anxiety and distress. In the latter case, the defendant would not be able to adduce important evidence. After balancing the factors for and against directing that the witness give his evidence by videolink, his Honour concluded that the factors in favour of giving the direction outweighed those against.11 Disposition 66 In assessing the present application, the matters of particular relevance were the costs burden to which the plaintiffs pointed and the 10 Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 5] [22]. 11 Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 5] [23]. -- 17 of 21 -- [2026] WASC 275 LUNDBERG J Page 18 importance of the plaintiffs' evidence in the context of the proceedings as a whole. 67 As to the costs concern raised by the plaintiffs, while the additional costs involved in attending trial are relevant, and the poor financial position of the plaintiffs did not appear to be contested, the quantum of the costs (and the question of proportionality) must be assessed in the context of the claim made by the plaintiffs. Through this proceeding, the plaintiffs will seek an order at trial that they should be entitled to a proportion of the deceased's estate. The precise quantum of that claim is fluid at present, although at least initially the amount claimed by each of the plaintiffs was in the order of $400,000. I understand this will need to be revised downward given the defendants' assessment of the total value of the estate. 68 In all civil proceedings in this court, litigants will be required to incur fees, in the nature of court fees, solicitor's fees, counsel fees, and disbursements necessary for the purposes of the proceedings, including transcript fees, photocopying, travel and accommodation. The amount estimated by the plaintiffs for their travel and accommodation expenses for trial is in the region of $2,000 to $3,500. That is a substantial amount for persons who lack resources, but it is far from a significant amount in the context of proceedings in this court. 69 The amount of the costs estimated by the plaintiffs is thus a relevant factor, but I do not consider it is a strong factor in favour of the application. I accept the defendants' submission that these costs should not be characterised as disproportionate. 70 I turn next to the importance of the plaintiffs' evidence in the proceedings. I have addressed this issue in part already, at [13] to [16] above. To reiterate the point made in those paragraphs, the present case is one in which the credibility and reliability of the two plaintiffs is a central feature of the case, particularly as to the issue of parentage, which will be an important and contested issue at trial. The plaintiffs are expected to give oral evidence as to matters stretching back many decades. The first plaintiff has already filed affidavit evidence with admitted discrepancies, which the court can reasonably expect to be the subject of cross-examination. 71 The court's assessment of the credit and reliability of the plaintiffs, in the present case, is thus a centrally important feature of the case. It will be important for the court to be in a position which avoids any -- 18 of 21 -- [2026] WASC 275 LUNDBERG J Page 19 limitations on the observations made of the plaintiffs when they testify. In this regard, the following observations of Lee J in Palmer v McGowan (No 2)12 come to mind: Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it. 72 Taking up the threads of the further observations made by Lee J which follow the above passage, the present case is one in which it will be important for the court to assess the emphasis and tone of the evidence of the plaintiffs, and ensure that any subtleties and nuances of their evidence is not diminished through the use of a videolink. 73 Additionally, the interests of justice require that the respective counsel for the defendants not be prejudiced in their ability to cross- examine the plaintiffs, and to forensically test their evidence. 74 I should say that I accept the plaintiffs will have a suitable location in Kununurra from which to give their evidence (namely, the Kununurra court house), and I accept that the management of documents during the video link process will not be burdensome. As to this latter point, this is not a document heavy case. 75 Further, there are not likely to be other technological factors which inhibit the process. That is, I did not regard any perceived issue concerning the technology associated with the use of videolinks to be a matter of concern. The court's experience, in the use of modern videolinks, is that there is no delay in the transmission process. The assessment of his Honour Justice Le Miere, in 2010, remains true today, that there will be few cases where a judge will be significantly disadvantaged in his assessment of a witness' credibility by a witness giving evidence by videolink.13 His Honour recognised there may be exceptional cases, though. 76 Ultimately, it is the central importance of the plaintiffs' evidence and their credibility which are the compelling features of these proceedings when assessing this application. Those matters, and the 12 Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 [43], [45] - [47]. 13 Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 5] [13]. -- 19 of 21 -- [2026] WASC 275 LUNDBERG J Page 20 potential for a consequent disadvantage to the court in being able to assess the plaintiffs' evidence and the prospect of unfairness to the defendants, point strongly in favour of the conclusion that a direction to permit the plaintiffs to give evidence by videolink would not be in the interests of justice. I accordingly refused the application at the conclusion of the strategic conference. 77 That conclusion having been reached, and given the terms of s 121(2a) of the Evidence Act, it is strictly unnecessary to consider the exercise of the discretion. Had it been necessary to do so, I would have exercised the discretion against making such a direction, largely for the reasons I have identified above. There is a further aspect which is relevant here, namely that no positive submission was advanced to the effect that, in the event the applications were refused, the plaintiffs' evidence would not be led at all. Rather, I understood the position to be that, if the application was not granted, the plaintiffs would be put to the burden and expense of the travel to Perth and their accommodation expenses during the trial. 78 Had it been necessary to undertake the exercise, a balancing of the costs concern advanced by the plaintiffs and the other issues I have identified, particularly whether the use of videolink might inhibit the court's assessment of this central evidence and also potentially put the defendants at an overall forensic disadvantage, would yield a strong conclusion against allowing the plaintiffs to testify by videolink. Conclusion and orders 79 At the conclusion of the hearing I accordingly made the following orders: Entry for trial 1. Order 2 of the orders made on 11 August 2025 be vacated and the matter be entered and listed for a trial of all issues on 21 to 24 September 2026. 2. By 4:00pm on Friday, 17 July 2026, the first defendant file and serve an affidavit in respect of the anticipated liabilities of the estate, including as to capital gains tax. 3. By 4:00pm on Friday, 24 July 2026, the plaintiffs file and serve any amended originating summons specifying the relief sought. 4. Any party file any further affidavit they intend to rely on at trial on or before 31 July 2026. -- 20 of 21 -- [2026] WASC 275 LUNDBERG J Page 21 Application to give evidence by video-link 5. The plaintiffs' application made pursuant to s 121 of the Evidence Act 1906 (WA), that the evidence of the plaintiffs at trial be given by way of video-link, is hereby dismissed. Programming orders 6. The parties are to confer within 7 days as to the trial directions and file a minute of consent orders or competing minutes of proposed orders by 4:00pm, Friday 10 July 2026. 7. The matter be listed for a directions hearing on Thursday, 27 August 2026 at 9:30am. Other orders 8. There be liberty to apply. 9. Costs of the strategic conference be in the cause. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 6 JULY 2026 -- 21 of 21 --