Pachkovski v Australian Executor Trustees Ltd

[2011] NSWCA 94

Court of Appeal

New South Wales

Case Title:	Pachkovski v Australian Executor Trustees Ltd
Medium Neutral Citation:	[2011] NSWCA 94
Hearing Date(s):	8 April 2011
Decision Date:	08 April 2011
Jurisdiction:
Before:	Hodgson JA at 1; McColl JA at 7; Campbell JA at 8
Decision:	Adjournment not granted. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - Application to adjourn hearing - Made in writing annexing a medical certificate - Whether a sufficient basis for an adjournment.
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	Alexandre PACHKOVSKI  (first applicant) Violetta PRIMANZON  (second applicant)  Grigoriy PRIMANZON  (third applicant) AUSTRALIAN EXECUTOR TRUSTEES LTD (ACN 007 869 794)
Representation
- Counsel:	Counsel: P LANE - Pro bono counsel (instructions withdrawn) (applicants) J SIMPKINS SC  (respondent)
- Solicitors:	Solicitors: Self-represented (applicants) Gadens Lawyers (respondent)
File number(s):	2009/295053
Decision Under Appeal
- Court / Tribunal:
- Before:	Hidden J
- Date of Decision:	24 September 2010
- Citation:	Australian Executor Trustees Limited v Alexandre Pachkovski & Ors [2010] NSWSC 1089
- Court File Number(s)	SC 2009/295053
Publication Restriction:

Judgment

1. HODGSON JA: When this matter was called this morning, there was no appearance for the applicants. A pro bono barrister, Ms Lane, attended. She had at one stage received instructions from one of the applicants and from another person purporting to act on behalf of another of the applicants. However, she told the court that her instructions had been withdrawn by the two people who had initially given her instructions, she sought the court's permission to leave, and that permission was granted.

1. The court has before it a document entitled "Letter of Alexander Pachkovski, 5 April 2011" which, among other things, asks that the hearing date be changed from today to some day after 28 April 2011. The reason given is ill health of the three applicants. The document annexes what purports to be medical certificates signed by one Dr Aristov.

1. In relation to Mr Alexandre Pachkovski, the document purports to certify an opinion that he is suffering from blood pressure and will be unfit for court from 3 April 2011 to 23 April 2011. A medical certificate concerning Mr Grigory Primazon certifies that he is suffering from depression and will be unfit for court from 6 April 2011 to 28 April 2011 inclusive. The third relates to Ms Violetta Primazon. It, too, certifies that she is suffering from depression, and will be unfit for court from 6 April 2011 to 6 June 2011 inclusive.

1. Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed.

1. There is also the significant point that a pro bono barrister, who had been given instructions to appear, has had her instructions withdrawn with no suggestion given to the court of any explanation why this should be so.

1. Having regard to those considerations, in my view a case is not made out to adjourn the hearing.

1. McCOLL JA: I agree.

1. CAMPBELL JA: I agree.

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