CITATION: Magjarraj v Asteron Life Limited [2009] NSWSC 1433 HEARING DATE(S): 14/12/09, 15/12/09
JUDGMENT DATE :
15 December 2009JURISDICTION: Equity Division JUDGMENT OF: Barrett J DECISION: Proceedings dismissed with costs. CATCHWORDS: PROCEDURE - application by defendant for dismissal of proceedings when plaintiff absent on second day of trial - cross-examination of plaintiff incomplete at end of first day - letter from plaintiff addressed to judge faxed overnight to judge's chambers - solicitor and counsel for plaintiff without instructions and unable to contact plaintiff - solicitor granted leave to file notice of ceasing to act - no valid rationale or explanation for plaintiff's absence - proceedings dismissed LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rules 7.29(2), 12.7(1), 29.7(1), 29.7(4) CATEGORY: Principal judgment PARTIES: Alija Magjarraj - Plaintiff
Asteron Life Limited - DefendantFILE NUMBER(S): SC 3230/09 COUNSEL: Plaintiff unrepresented
Mr R A Cavanagh - DefendantSOLICITORS: Plaintiff unrepresented
Lander & Rogers Lawyers - Defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BARRETT J
TUESDAY, 15 DECEMBER 2009
3230/09 ALIJA MAGJARRAJ v ASTERON LIFE LIMITED
JUDGMENT
1 At the conclusion of the first day of this trial yesterday, the plaintiff was under cross-examination. He went into the witness box and was sworn at 11.40am. The cross-examination was incomplete when the court adjourned at 4.00pm.
2 The plaintiff has not attended court today.
3 The defendant makes an application for an order dismissing the proceedings.
4 When the court was reconvened at 10 o’clock this morning, the plaintiff was not present. His counsel said that his instructing solicitors had received by fax overnight two documents which were handed up. They appear to have been faxed just after 8 o’clock last night. Counsel said that neither he nor his solicitors had any instructions from the plaintiff as to his whereabouts or his intentions regarding attendance to progress his case; and this was so despite attempts to contact the plaintiff.
5 The two documents handed up were a certificate signed by Dr Sabrina Dulic of Liverpool Health Care Medical Centre, 2/236 Macquarie Street, Liverpool and a copy of a prescription issued to the plaintiff by Dr Dulic for the medication Amoxil. Both bear yesterday’s date, 14 December 2009.
6 Dr Dulic’s certificate is in these terms:
- “This is to certify that Alija Magjarraj is receiving medical treatment for a medical condition and is unfit for court hearing commencing from the period Monday 14 December 2009 to Friday 18 December 2009 inclusive.”
7 The certificate then says it was completed on 14 December 2009 and appears to be signed by Dr Dulic.
8 Because of the plaintiff’s non-attendance at 10.00am today, I stood the matter down until 2.00pm so that the legal representatives could attempt to obtain instructions. Upon returning to chambers, my Associate found a fax apparently sent last night to a machine on another floor of this building. The fax contained the two documents to which I have referred plus a letter addressed to me. On my instruction, my Associate…
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- Case
- [2009] NSWSC 1433
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the plaintiff's unexplained absence justified the dismissal of the proceedings and whether there were any grounds for the defendant to succeed in its application. The court had to consider the circumstances surrounding the plaintiff's absence and whether it constituted a voluntary departure from the proceedings, which would warrant dismissal. The court also needed to assess the adequacy of the steps taken by the plaintiff's solicitor to contact the plaintiff and the reasonableness of the plaintiff's unexplained absence.
The court found that the plaintiff's absence without any valid rationale or explanation was sufficient grounds for the dismissal of the proceedings. The plaintiff's solicitor had made reasonable efforts to contact the plaintiff but had been unsuccessful. The court concluded that the plaintiff's absence was voluntary and that there was no justification for the delay. Consequently, the defendant's application for dismissal was successful. The court ordered that the proceedings be dismissed with costs to be paid by the plaintiff.
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