Cicek v Estate of late Solomon

The plaintiffs, Cicek and others, appealed to the Court of Appeal of New South Wales from a decision of a primary judge who refused them leave to rely on a further affidavit on the first day of the hearing. The primary judge had dismissed the matter for want of evidence. The plaintiffs, who had previously been represented, were self-represented at the hearing.

The legal issues before the Court of Appeal were whether the primary judge erred in refusing to grant an adjournment of the hearing and refer the plaintiffs to pro bono assistance, and whether the primary judge adequately considered the injustice that would be suffered by the plaintiffs in refusing their additional evidence.

The Court of Appeal dismissed the appeal, finding that the primary judge had not erred. The Court reasoned that the plaintiffs had ample opportunity to prepare their case and that the refusal to grant an adjournment and allow the further affidavit was within the primary judge's discretion. The Court also noted that the plaintiffs had been given notice of the hearing date and had failed to adequately explain their lack of preparedness or the necessity of the late affidavit. The Court emphasised that while a judge should consider injustice, this must be balanced against the need for efficient court management and the rights of the opposing party.

The appeal was dismissed with costs. The Court also made an order directing the solicitors for the first respondent to notify Ward JA's associate within seven days as to the identity of the person or persons to whom probate or letters of administration have been granted in respect of the estate of the late Mr Solomon, or, if no such grant has been made, the identity of an appropriate person who consents to be appointed as representative under rule 7.10 of the UCPR, for the purposes of regularising the parties to the proceedings.