Jordan v Jordan

[2017] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation:	Jordan v Jordan [2017] NSWSC 812
Hearing dates:	19 June 2017
Date of orders:	19 June 2017
Decision date:	19 June 2017
Jurisdiction:	Equity
Before:	Hallen J
Decision:	See paragraphs 17 – 19 of reasons
Catchwords:	PRACTICE AND PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7 - Application by Defendant for dismissal of proceedings - No explanation for Plaintiff's absence – Evidence that Plaintiff aware of the hearing – Proceedings dismissed
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167 NSW Trustee and Guardian as executor of the Will of Michael Robert Walsh (Dec’d) v Gregory (2012) 18 BPR 35,153; [2012] NSWSC 681
Category:	Procedural and other rulings
Parties:	Ms Annette Jordan (Plaintiff) Ms Nevana Linda Vivien Jordan (Defendant)
Representation:	Counsel: No appearance by Plaintiff Mr P O’Loughlin (Defendant)   Solicitors: No appearance by Plaintiff John R Quinn & Co Lawyers (Defendant)
File Number(s):	2016/142498

Judgment

1. HIS HONOUR: In these proceedings, commenced by Summons filed 9 May 2016, the Plaintiff, a grandchild of the deceased, makes a claim for a family provision order out of the estate of her grandmother, who died on 10 May 2015 aged 87 years. The Defendant is the mother of the Plaintiff.

2. The deceased left a Will made on 29 August 2014, probate of which was granted to the Defendant on 5 April 2017. She is named as the sole executrix and sole beneficiary in that Will. The value of the deceased's estate at the date of death was just over $2 million.

3. Although the deceased died over 2 years ago, the Defendant and sole beneficiary has been unable to finally distribute the estate property. Naturally, the final winding up of the estate is unable to be completed because of the commencement, and continuation, of these proceedings.

4. On 16 December 2016, the proceedings were listed for hearing today in the Family Provision Running List, with an estimated duration of one day. When the matter was listed, the Plaintiff was legally represented, and the legal representative was present when orders and directions were made.

5. Subsequently, however, on 31 March 2017, the Plaintiff's solicitors filed a Notice of Ceasing to Act. Since then, there has been no appearance by, or on behalf of, the Plaintiff, and the directions made in December 2016 have not been complied with by the Plaintiff, or otherwise on her behalf.

6. In the usual course, the matter was listed before me on 16 May 2017 for a pre‑trial directions hearing, at which time, although the matter was called three times outside the Court, there was no appearance by, or on behalf of, the Plaintiff.

7. Process servers had been retained by the Defendant’s solicitors, in the United States, where the Plaintiff is living, and despite many attempts to serve the Plaintiff with documents relating to the hearing, those process servers have not been able to do so.

8. There is also strong evidence that since April 2017, numerous attempts have been made to confirm that the Plaintiff is aware of the hearing date today, and various documents have been sent to her by post, and by email, without any acknowledgement of receipt. Indeed, the Plaintiff has not responded at all to any of the solicitors’ correspondence. There no evidence that she has contacted the Defendant, directly, in relation to the proceedings.

9. The only other evidence I should mention, is that in early June 2017, the former solicitors acting for the Plaintiff, spoke with the solicitor acting for the Defendant to see whether there “[was] any possibility of settling this case?” The written response to this oral enquiry (Ex. 1), regrettably, was sent only on Friday last, and it was that the Defendant did not wish to make any offer, and all offers previously made had been withdrawn.

10. In response to an enquiry about the role of the former solicitors, the Plaintiff's former solicitor sent an email on Friday last stating that:

“We only act on behalf of Annette Jordan in a limited capacity to try and resolve the matter. We note however that your client will not make any offers. We will not be going on the record."

11. Again, today, the matter has been called three times outside the Court and there has been no appearance by, or on behalf of, the Plaintiff.

12. Rule 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) applies when a trial is called on. If any party is absent, the Court may proceed with the trial generally, or so far as concerning any claim for relief in the proceedings, or may adjourn the trial. There has been no application by the Defendant to proceed with the trial or to adjourn the trial.

13. UCPR rule 29.7(4) provides that, if, in relation to any proceedings, the Defendant appears, but the Plaintiff does not appear, the Court may dismiss the proceedings. It is that application that counsel for the Defendant made.

14. A party is relevantly absent only if he or she had knowledge, or notice, of the hearing date, and is neither present, or represented, when the matter is due to be heard: NSW Trustee and Guardian as executor of the Will of Michael Robert Walsh (Dec’d) v Gregory (2012) 18 BPR 35,153; [2012] NSWSC 681, I refer to what I wrote in that case, at [17] – [22].

15. More recently, in Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167 (a case in which a Plaintiff had failed to appear at the hearing), after referring to some of the passages quoted above, I added, at [37] and at [40]:

“Of course, I must also have regard to the obligations imposed by s 56 to s 60 of the Civil Procedure Act 2005 (NSW). Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. The court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57 in turn requires the court to have regard to specified matters. Section 58 requires the court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and the court must have regard to the provisions of ss 56 and 57. These sections recognise the fact that delay and case backlog are matters which affect not only the public cost in delivery of justice, but the court’s ability to provide individual justice, and that the reforms introduced by the Civil Procedure Act promote the provision of individual justice notwithstanding that they may have adverse effects on the claims of individual parties in particular circumstances: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230at [37] (Allsop P).

…

… The Court is not required to indefinitely delay the completion of the hearing in the hope that he might change his mind and appear: Allesch v Maunz [2000] HCA 40; [2000] HCA 40; (2000) 203 CLR 172, at [182]–[186], [189]–[191]; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, at [4]. The Plaintiff, proved to be on notice of the proceedings, has been afforded the opportunity to appear and to be heard. He has chosen not to do so. It follows that it is appropriate for the proceedings to be determined in his absence.”

16. In this case, the Plaintiff was legally represented when the matter was listed for hearing. There is no suggestion that she was not informed of the date of hearing, and as learned counsel for the Defendant pointed out, the recent contact, in order to try to resolve the proceedings, suggests some knowledge by the Plaintiff that the hearing was imminent. There has been no explanation for the Plaintiff's absence, and she has failed to comply with any of the directions made for the service of updating evidence or a costs affidavit.

17. It seems to me that the Plaintiff does not wish to proceed with her claim for a family provision order, and in those circumstances, because she has not been present when the matter has been called, I will order that the Summons be dismissed. In the circumstances, there seems to be no reason why the Plaintiff should not pay the Defendant's costs of the proceedings, and I make that order as well.

18. I shall also order that the entry of those orders, other than on a case management basis, be stayed for a period of 14 days, to give the Plaintiff an opportunity to take such steps as she may care to take, before the orders are finally entered. I direct that an affidavit of service of the orders, by registered post, and by email, upon the Plaintiff, be delivered to my Chambers by 4:00 p.m. on Friday 30 June 2017.

19. In the event that I am satisfied that she has been provided with a copy of the orders, and a copy of these reasons, and if the Plaintiff does nothing, I shall, in Chambers, have the orders, with the exception of the stay, entered finally.

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Decision last updated: 21 June 2017