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Magjarraj v Asteron Life Limited

Magjarraj v Asteron Life Limited

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CITATION: Magjarraj v Asteron Life Limited [2009] NSWSC 1433

HEARING DATE(S): 14/12/09, 15/12/09

JUDGMENT DATE :
15 December 2009

JURISDICTION: 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 - Defendant

FILE NUMBER(S): SC 3230/09

COUNSEL: Plaintiff unrepresented
Mr R A Cavanagh - Defendant

SOLICITORS: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 1433
Decision Date: 15 December 2009

CaseChat Overview and Summary

In Magjarraj v Asteron Life Limited, the defendant, Asteron Life Limited, applied for the dismissal of the proceedings due to the plaintiff, Magjarraj, being absent on the second day of the trial. The matter was before the Supreme Court of Queensland. The trial had begun with the cross-examination of the plaintiff on the first day, but it was not completed by the end of that day. Overnight, a letter from the plaintiff was faxed to the judge's chambers, stating that the plaintiff's solicitor and counsel were without instructions and could not contact the plaintiff. Subsequently, the solicitor was granted leave to file a notice of ceasing to act. Despite these developments, no valid reason or explanation for the plaintiff's absence was provided.

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.

Orders