Wilkinson v Bonnici - [2025] NSWSC 724

Supreme Court

New South Wales

Medium Neutral Citation: Wilkinson v Bonnici [2025] NSWSC 724
Hearing dates: 7 July 2025
Date of orders: 7 July 2025
Decision date: 07 July 2025
Jurisdiction: Equity - Family Provision List
Before: Meek J
Decision:
Hearing dates vacated. Costs of and incidental to the application are the defendant’s costs in cause.

Catchwords:
CIVIL PROCEDURE — Application by plaintiff for vacation of hearing dates of a family provision claim — Illness of counsel — Plaintiff’s counsel contracted RSV less than two business days before two-day hearing scheduled to commence — Counsel’s discussion with doctor indicates he would be quite unwell for at least 3-4 days — Counsel has been involved from the beginning of the matter for a period of two years and is acting on a conditional fee basis — Subject matter not overly complex but strongly contested — One of the defendants is the deceased’s elderly widow with significant health issues — Experienced counsel for the plaintiff confirmed the day before the scheduled hearing that the position regarding his health and asserted inability to discharge his duties has not changed — Hearing dates vacated — Defendants’ counsel’s submission that plaintiff’s counsel should simply “soldier on” rejected
LEGAL PRACTITIONERS — Discretion of judge in urgent circumstances to act upon representations from the bar table

Cases Cited:
Danwer v Nine Network Australia [2016] NSWSC 95
Equititrust Ltd v Manttan [2010] NSWCA 95
Erem v Moussa; The Estate of Mary Moussa [2023] NSWSC 536
Gerstenmeier v Gerstenmeier [2024] NSWSC 712
O’Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839
Westpac Banking Corporation v Diagnose [2014] NSWSC 1623

Category: Procedural rulings
Parties: Helen Wilkinson (Plaintiff / Cross-Defendant -Applicant)
Jacqueline Bonnici (First Defendant / First Cross-Claimant - First Respondent)
David Bonnici (Second Defendant / Second Cross-Defendant - Second Respondent)
Representation: Counsel:
A Martin (Plaintiff / Cross-Defendant - Applicant)
D Yazdani (Defendants / Cross-Claimants -Respondents)
Solicitors:
Turnbull Hill Lawyers (Plaintiff / Cross-Defendant -Applicant)
Rowlandson & Co (Defendants / Cross-Claimants -Respondents)

File Number(s): 2023/00192935

Ex tempore JUDGMENT (revised)

HIS HONOUR: The application before the court is an application by the plaintiff to vacate the hearing dates of these proceedings. The hearing is due to commence tomorrow (8 July 2025) and is listed for two days. The application to vacate the hearing date is “strenuously” (his word) opposed by Mr Yazdani, counsel for the defendants.
I have determined to vacate the hearing dates. Mr Yazdani requested reasons for judgment. What follows are my reasons. I will first set out some of the background leading to the application for adjournment.

Background

The proceeding was commenced by statement of claim filed on 15 June 2023 and relates to the estate of the late Anthony Bonnici (deceased) who died on 15 June 2023. He was survived by his wife, Jacqueline (first defendant), and two children, David (second defendant) and Helen (plaintiff).
The proceeding progressed through various case management stages. On 12 April 2024, the proceeding, which at that stage included issues…

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.

Continue reading Wilkinson v Bonnici

Details

AGLC: Wilkinson v Bonnici [2025] NSWSC 724
Case: [2025] NSWSC 724
Decision Date: 07 July 2025

CaseChat Overview and Summary

In the Federal Circuit Court, the plaintiff sought to vacate the hearing dates of a family provision claim due to the illness of the counsel. The plaintiff's counsel had contracted RSV less than two business days before a two-day hearing, and a discussion with a doctor indicated that he would be unwell for at least 3-4 days. The counsel had been involved in the matter from its inception, acting on a conditional fee basis, and the subject matter, though not overly complex, was strongly contested. One of the defendants was the deceased's elderly widow with significant health issues. The experienced counsel for the plaintiff confirmed that his health situation and inability to discharge his duties had not changed the day before the scheduled hearing. The court had to decide whether the hearing dates should be vacated based on the counsel's illness.

The court considered the discretion of the judge in urgent circumstances to act upon representations from the bar table. The judge noted that the counsel's illness was genuine, and his inability to participate in the hearing was due to his health condition. The court acknowledged the counsel's involvement in the matter for two years and the strong contestation of the subject matter. The judge also considered the health issues of one of the defendants, the deceased's elderly widow. The court rejected the defendants' counsel's submission that the plaintiff's counsel should simply "soldier on," and the hearing dates were vacated.

The court exercised its discretion in favour of the plaintiff, taking into account the urgency of the situation and the genuine illness of the counsel. The court recognised the importance of the counsel's involvement in the matter and the strongly contested nature of the subject matter. The judge also considered the health issues of one of the defendants and the need for a fair and just outcome in the case. The court's decision to vacate the hearing dates demonstrated the importance of the judge's discretion in urgent circumstances and the need to balance the interests of all parties involved.

The final orders of the court were to vacate the hearing dates of the family provision claim. The court recognised the genuine illness of the plaintiff's counsel and the need for a fair and just outcome in the case. The judge exercised its discretion in favour of the plaintiff, taking into account the urgency of the situation and the importance of the counsel's involvement in the matter. The court also considered the health issues of one of the defendants and the strongly contested nature of the subject matter. The final orders ensured that the matter could proceed in a fair and just manner, with all parties having the opportunity to be heard.

Orders