Supreme Court New South Wales Medium Neutral Citation: The Estate of Alberto Magri [2022] NSWSC 873 Hearing dates: 29 June 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Jurisdiction: Equity Before: Henry J Decision: Defendants' application to proceed in the absence of the Plaintiff granted. Defendants' solicitors to notify the Plaintiff that the hearing would proceed the following day irrespective of the Plaintiff's attendance. Catchwords: CIVIL PROCEDURE – application to proceed in the absence of the Plaintiff – where Plaintiff self-represented – where Plaintiff appeared on the first day but was absent on second and third day – where Defendants had not provided court book to the Plaintiff until the first day – where adjournments granted to enable Plaintiff to prepare for hearing – where medical certificates sent to the Court via email – application granted Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bauskis v Liew [2013] NSWCA 297 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 UTi (Aust) Pty Ltd v Sheehan & Anor [2017] NSWSC 344 Uy v Ng [2021] NSWSC 429 Category: Procedural rulings Parties: Erica Magri (Plaintiff; Self-Represented) Sonia Allan (First Defendant) Anthony Magri (Second Defendant) Angela Maloney (Third Defendant) Teresa Gaffney (Fourth Defendant) Representation: Counsel: J Armfield (Defendants) Solicitors: Crowther Sim Lawyers (Defendants) File Number(s): 2018/00394362 Publication restriction: Nil EX TEMPORE JUDGMENT (REVISED) 1. These reasons deal with an application made by the Defendants for the hearing to proceed in the absence of the Plaintiff. The Defendants' application was made orally when the hearing was listed to recommence at 2pm today. The Plaintiff, who is self-represented, had notice of today's hearing but did not appear in circumstances which I will come to. Background 1. These proceedings relate to the estate of the late Alberto Magri (deceased) who died on 12 December 2018. The deceased was survived by his former wife, Marie Wales, and their six children, Robert Magri, Teresa Gaffney, Angela Maloney, Anthony Magri, Sonia Allan and Erica Magri. Without any disrespect intended, I refer to members of the deceased's family by their first names. 2. On 6 March 2019, probate in common form of the deceased's will, dated 20 August 2015, was granted to Sonia who was named as the sole executrix and trustee under that will. The Inventory of Property admitted to probate discloses an estate valued at $861,790.80. Under the will, the deceased's estate was to be converted into moneys and, after payment of expenses, divided equally amongst Marie and the six children. 3. These proceedings were commenced by Erica (the Plaintiff) on 23 August 2019 by summons filed that day against Sonia (the Executor), Teresa, Angela and Anthony (together, the Defendants). 4. In summary, the Plaintiff's present claims, which are now set out in an amended statement of claim (ASOC) that was filed on 13 May 2021: 1. raise issues concerning the validity of the deceased's 20 August 2015 will and claims that the grant of probate in common form to the Executor on 6 March 2019 should be revoked; 2. challenges the validity of a Deed of Disclaimer executed by the Plaintiff on 11 March 2019 whereby she purported to disclaim her interest in the deceased's estate; 3. alleges that the Executor has not properly accounted for her administration of the deceased's estate, including claiming that the Executor has misappropriated funds from the deceased estate for personal expenses and sold the deceased's residence in Smithfield without authority; and 4. makes an application for a family provision order for further provision from the deceased's estate. 1. By cross-claim filed on 20 March 2020, the Executor seeks a grant of probate of the deceased's will in solemn form. 2. It is not necessary to set out a full history of the procedural background of the proceedings. I simply observe that the parties have filed defences to the amended statement of claim and cross-claim (which put in issue the matters raised by each of those claims), have served extensive affidavit evidence, there have been numerous directions hearings and the Plaintiff has been self-represented for most of the time since the proceedings were commenced. 3. On 6 December 2021, the proceedings were listed for hearing before me to commence on 27 June 2022 with an estimate of four days. 4. On 4 May 2022, I made pre-trial directions that provided for the parties to serve updating affidavits and outlines of written submissions, chronologies and schedules identifying the nature and value of the deceased's estate prior to the hearing, which directions were complied with. The Defendants were also directed to deliver a court book to the Plaintiff and the Court and provide a proposed timetable for the hearing that identified the suggested times for, amongst other things, evidence to be given by each witness and notice of which of the Defendants' witnesses would be giving evidence by audio visual link. The Defendants provided their proposed timetable (albeit slightly later than ordered) and delivered a court book to the Court in accordance with the timetable. Unfortunately, they did not serve a court book on the Plaintiff as required. 5. At 1:49pm on 25 June 2022, the Saturday before the proceedings were listed for hearing, the Plaintiff sent an email to my associate (copied to the Defendants' solicitors) that attached a letter that was referred to as an "URGENT letter for your attention" and stated that the Defendants' solicitors had not supplied all the required documents or the court book as ordered. The attached letter referred to those matters and also raised concerns about the proposed timetable. At 9:05am on 27 June 2022, the morning the matter was listed for hearing, my associate sent an email to the Plaintiff (copied to the Defendants' solicitors) indicating that the Plaintiff's letter had been brought to my attention, that the proceedings remained listed for hearing and that the Court would deal with any applications or issues the Plaintiff wished to raise regarding compliance with the Court's directions at the commencement of the hearing. The hearing and relevant events leading to the Defendants' application 1. At 10am on 27 June 2022, when the matter was called for hearing, the Plaintiff appeared for herself and Mr Armfield of counsel appeared for the Defendants, both appearing in person. 2. After appearances were given, the Plaintiff sought an adjournment on the basis that she had only received the court book that morning, all of the documents were not in the court book and she was not ready to start the hearing that day. 3. Mr Armfield conceded that the court book had not been provided to the Plaintiff until that morning and accepted, appropriately, that there was no acceptable reason for that. He also accepted that the Plaintiff needed time to digest the material, noting that he understood that the Plaintiff already had all of the material referenced in the court book, and suggested that the hearing be adjourned until the following day. After hearing further from the parties, the matter was stood in the list until 12:30pm that day to enable the Plaintiff to review the court book index and identify what, if any, documents were missing (noting that the Plaintiff had identified that her defence to the cross-claim had not been included) and to discuss the court book and proposed timetable for the hearing that had been circulated the previous week with the Defendants' legal representatives. 4. When the matter resumed at 12:30pm, I was informed by Mr Armfield that the parties had agreed to a revised timetable (which provided for the hearing to commence at noon the next day and finish on Thursday), that he had gone through the court book with the Plaintiff and he understood that she accepted that she already had all the material which was in them, and that he understood she would like to start the hearing at noon tomorrow, which he did not oppose. He also stated that the Plaintiff had indicated that she no longer required certain witnesses for cross-examination, that he did not propose to spend time going through objections to the Plaintiff's evidence and gave an overview of what he contended was in issue in the case, noting that the Defendants did not rely on the Deed of Disclaimer and it should be possible to narrow the issues regarding the accounting issues and administration of the estate. 5. The Plaintiff then informed the Court that she agreed with what Mr Armfield had said. She indicated that there were some affidavits that she would not need to rely on that had been included in the court book, as they were "just duplicates", and agreed to notify the Defendants which ones she relied on before noon the next day. There was then the following exchange between the Court and the Plaintiff (T9.19-32): "HER HONOUR: … So you are in agreement that we can start at 12 noon tomorrow. That will give you sufficient time to prepare now you have the court book, yes? PLAINTIFF: Yes, your Honour. HER HONOUR: And have you looked at this timetable that Mr Armfield has given you? PLAINTIFF: Yes, your Honour, and I'm agreeable with it as well. HER HONOUR: You're agreeable with that. PLAINTIFF: Yes, your Honour." 1. There was then further discussion about the evidence, during which the Plaintiff indicated that she had no objection to any of the affidavits that the Defendants wished to rely on and the logistics of the hearing (including about evidence to be given remotely and the availability of a court room). The discussion also related to the accounting information relied on by the Executor and the Plaintiff's objections to certain items. The Court adjourned the hearing until noon on Tuesday, 28 June 2022 (in accordance with the parties' agreed revised timetable) and made directions for the Plaintiff to notify the Defendants of the affidavits she intended to rely on (by reference to those contained in the court book) and to provide an electronic version of an annexure to her affidavit dated 30 August 2021, which identified her objections to the executor's accounting information. The Plaintiff complied with those directions by emails sent to the Defendants' solicitors (copied to my associate) at 4:15pm and 5:33pm that afternoon. 2. At 10:29am the following day (28 June 2022), my associate received an email from the Plaintiff (copied to the Defendants' solicitors), which stated: "I am the Plaintiff in this matter. I am aware that the Court has a timetable and that rooms are only available for a specified timeframe, but I will not be attending Court today. The matter is not ready for hearing, I'm exhausted, and I'm not in a condition to be cross examined. This is no disrespect to Her Honour at all. If Her Honour wants to throw this matter out and put costs orders on me because of the wrongs of other people, then so be it. The Defendants solicitors have been incriminating their own clients all along, which was not my intentions, but unfortunately maybe this matter is better in the Criminal Courts. I apologise for not attending Court today, but if this is how people win Court matters, then I totally understand why the Communities are out of control, as there is no point turning to the Courts anymore for assistance. Again, this is by no means in disrespect to Her Honour or the Courts, it is totally against the inappropriate expectations and practices of legal representatives." 1. At 11:13am that day, my associate sent an email to the Plaintiff (copied to the Defendants' solicitors) which noted that, in accordance with the varied timetable agreed by the Plaintiff and the Defendants, the hearing of the Plaintiff's claim and the Executor's cross-claim were rescheduled to recommence at 12 noon that day. The email stated that it was not appropriate for the Plaintiff to inform the Court that she would not be attending Court and that the matter was not ready for hearing by email received at 10:29am and that if the Plaintiff wished to make an application in respect of her claim, she should make it in the usual way at the commencement of the rescheduled hearing that day. The email also indicated that it was expected that the Plaintiff would attend Court in person to make the application, as she attended Court in person the previous day, but dial in details for the video link to the courtroom were provided in the event that an in person appearance was not possible. 2. At noon on 28 June 2022, when the matter was called, there was no appearance by the Plaintiff in person or by video link. Mr Armfield, who appeared in person for the Defendants, accepted that the appropriate course was to adjourn the matter for a short time having regard to the assertion in the Plaintiff's email and to give her some further time to prepare but that he may seek to proceed ex parte on the next occasion if nothing was heard from the Plaintiff. The Court adjourned the hearing to 2pm the next day (29 June 2022) and directed the Defendants' solicitors to notify the Plaintiff of that adjournment. They were also directed to notify the Plaintiff that if there was no appearance by her on the next occasion, the Court may deal with her claim and the Executor's cross-claim in her absence, and that if she wished to make any application, for example for a further adjournment, the application was to be made at the commencement of the resumed hearing with an affidavit explaining the circumstances. That Defendants' solicitor complied with that direction and sent an email notification to the Plaintiff that afternoon. In addition, my associate sent an email to the Plaintiff at 12:52pm that afternoon to notify the Plaintiff of the orders and directions made by the Court. 3. At 2:35pm on 28 June 2022, the Plaintiff sent an email to my associate (copied to the Defendant's solicitors) that stated, "Evidence For Your Information", and attached a medical certificate from Quality Health Medical Centre in Lidcombe dated 28 June 2022. The medical certificate, which was partially obscured, referred to the Plaintiff being "first consulted at our clinic for this illness on 28th June 2022", "undergoing treatment for a medical condition from 28 June 2022 to 28 June 2022 (inclusive)" and "is unfit to continue his/her usual occupation". The illness/medical condition was not identified and there appeared to be some information that had been redacted. 4. At 5:11am this morning (29 June 2022), the Plaintiff sent an email to my associate (copied to the Defendants' solicitors) stating: "I will be attending the doctors again today, to obtain another doctors certificate, as I've been up all night vomiting due to undue pressure and legal abuse. It is not whether or not I looked fine at Court on the 27 June 2022, it is that I have become none to well because of the 27 June 2022. I acknowledge the emails that I received yesterday by both your Chambers and Mr Sim, where I have been left no alternative, but to contact the Chief Justice. It has come to my attention that there is a 'Conflict of Interest' for Her Honour to hear this matter, where I believe that the correct process and procedure when this occurs, the Justice is required by Law to adjourn the matter back to the Judges List, for further directions, and remove themselves from the matter. I will also take this opportunity to notify once again, that to be delivered Court Books, the morning a hearing is meant to commence is to leave me with an unfair disadvantage. Though this is not the 'Conflict of Interest', this is not appropriate Court process and procedures. It is disappointing that I have required to point the out the 'Conflict of Interest' to His Honour. As I have stated previously, this is in no means to disrespect Her Honour or the Court. I will forward my doctor's certificate to your Chambers after my doctor's appointment." 1. At 9:35am, my associate sent an email to the Plaintiff (copied to the Defendants' solicitors) confirming that the hearing had been adjourned (noting there had been no appearance by the Plaintiff the previous day) and was scheduled to commence at 2pm. The email stated that if the Plaintiff wished to make an application for an adjournment or some other application in relation to me hearing the matter, the application should be made by the Plaintiff at 2pm and that any materials on which she intended to rely in support, including any further doctor's certificate, should be sent to chambers prior to 2pm. The Plaintiff was provided with dial in details so that she could attend the hearing and make any application by telephone if she was unable to attend Court in person. 2. At 12:28pm today, the Plaintiff sent an email to my associate (copied to the Defendants' solicitors) which stated, "Attached is a Medical Certificate & Prescription to stop me vomiting". Attached to the email was a medical certificate dated 29 June 2022 from Family Medical Centre Auburn addressed "To Whom It May Concern" which stated that the Plaintiff had attended the medical centre and will be unfit for work from 29 June 2022 to 30 June 2022 inclusive and a prescription for a Metoclopramide Hydrochloride tablet. I pause to observe that this medical certificate is from a different medical centre to the medical certificate received yesterday and also does not identify what medical condition the Plaintiff was alleged to have been suffering from and in what way she was "unfit" for "work". 3. At 12:49pm, my associate sent an email to the Plaintiff (copied to the Defendants' solicitors) acknowledging receipt of the Plaintiff's email, confirming that the matter was listed at 2pm today and referring to the email sent to the Plaintiff at 9.35am that morning. 4. At 2pm today (29 June 2022), there was no appearance by the Plaintiff in person or by telephone when the matter was called for hearing. 5. At the outset, Mr Armfield indicated that his application was for the case to proceed in the absence of the Plaintiff. I arranged for my associate to send an email to the Plaintiff advising her that such an application was being made by the Defendants' counsel and that if she wished to make any submissions, she should join the hearing by telephone on the link provided immediately. Sometime after sending that email, the hearing of Mr Armfield's application proceeded, noting that no email had been received from the Plaintiff in response to my associate's email and that she had not joined the hearing by telephone. Consideration and determination of Defendants' application 1. Mr Armfield submits that the Court should proceed with the hearing in the absence of the Plaintiff and that no further adjournment should be granted for essentially three reasons. 2. First, the Court made an order that any application by the Plaintiff for a further adjournment was to be made at the start of the hearing at 2pm today with an affidavit explaining the circumstances, which has not been complied with. 3. Second, he submits that the Court cannot rely on the medical certificate emailed by the Plaintiff today as the basis of an adjournment as it does not identify whether the doctor who allegedly prepared it was informed of the circumstances for which it was required and, even assuming it is an authentic document, there is no detail or explanation given as to the medical condition which the Plaintiff is said to be suffering from so as to ascertain whether it is a valid condition or reason for adjourning the matter. 4. Third, he submits that, taking into account the general principles about whether to adjourn a matter, the case should proceed as it has been in the list for a lengthy period of time, any practical prejudice suffered by the Plaintiff by reason of the late provision of the court book has been remedied by the adjournment since Monday, the value of the deceased's estate is relatively small (currently estimated to be approximately $746,634) and very significant legal costs have been incurred by the Defendants (which currently is estimated to be in the vicinity of $175,584). 5. In view of the history of these proceedings and recent events, in particular, the position agreed to by the Plaintiff at the hearing on Monday (as outlined earlier), I accept Mr Armfield's submissions. 6. As matters stand, there is currently no adjournment application before the court. Insofar as the Plaintiff relies on the emails sent to my associate yesterday and today as some form of informal application to further adjourn and/or vacate the hearing, I am not prepared to accept them as such an application: UTi (Aust) Pty Ltd v Sheehan & Anor [2017] NSWSC 344 at [14]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [11] (Magjarraj). In the absence of further material and an appearance form the Plaintiff, I am also persuaded that the contents of the Plaintiff's emails do not justify the Court granting a further adjournment of the hearing. 7. In an application to adjourn or vacate a trial on medical grounds, there must be medical evidence of sufficient specificity to enable the Court to be satisfied that the party making the application is in fact unable to attend Court: Uy v Ng [2021] NSWSC 429 at [20]. This is because, as was explained by Barrett J in Magjarraj at [22]: "All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything." 1. I do not accept that the medical certificates emailed to my associate by the Plaintiff or the contents of her emails adequately explain her absence from Court today (or yesterday) and her failure to comply with the Court's requirement that she appear to make any application in the usual way. The Plaintiff was well enough to attend Court on Monday and participated in the proceedings in a cogent and clear manner. She has been well enough to send various emails since then, including sending an email less than two hours before the hearing was scheduled to begin at 2pm today. The medical certificates sent through to my chambers are vague, formulaic and fail to identify what ailment (if any) the Plaintiff suffers and how her condition renders her unfit to participate in these Court proceedings. In my view, the medical certificates and the contents of her email this morning do not enable the Court to be satisfied that the Plaintiff is in fact unable to appear today to present her case or make an application in respect of the hearing, noting that the options of attending by video and telephone have been provided to her. Further, the circumstances in which the Plaintiff has provided the medical certificates to the court and the contents of her recent communications raise doubts in my mind as to whether the Plaintiff would be in a position to deal with the proceedings even if the hearing was to be vacated until later this year or early next year. 2. The principles applicable to the exercise of my discretion whether to vacate the hearing are well established. In determining whether to do so, I am required to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA, s 56(1). I need to manage the proceedings having regard to the matters listed in s 57(1) of the CPA and take into account s 58(2) of the CPA which requires the Court to seek to act in accordance with the dictates of justice having regard to the provisions of ss 56 and 57 of the CPA. The dictates of justice are paramount, as explained by Beazley JA as Her Excellency then was (Giles and Whealy JJA agreeing) in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [141] (Hamod). 3. Relevantly, r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which concerns the procedure to be followed if a party is absent, provides that the court may proceed to trial or adjourn if any party is absent: UCPR, r 29.7(2). It also provides that the court may dismiss proceedings if the defendant appears and the plaintiff does not: UCPR, r 29(4). 4. It has been observed that the clear purpose of r 29.7 of the UCPR is the efficient dispatch of Court business: NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 at [18]. 5. The Court's duty to ensure that a trial is fair requires that the plaintiff, being self-represented, does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. However, the duty to ensure that a trial is conducted fairly is not solely owed to the unrepresented plaintiff and does not extend to assisting her in active terms by advising how her rights should be exercised or exercising them on her behalf. The touchstone is one of "fairness" and the Court must be astute not to confer upon a self-represented litigant a positive advantage over the represented opponent: Hamod at [309]-[312] and Bauskis v Liew [2013] NSWCA 297 at [68]-[69], and the cases there cited. 6. In this case, the Plaintiff was provided with time on Monday to review and discuss the court book she received that morning with the Defendants' legal representatives. The Plaintiff agreed to the revised timetable, indicated that the adjournment to 2pm on Tuesday would provide her with sufficient time to prepare for the hearing, noting that the court book contained all of the documents which she already had and intended to rely on, and provided further materials in anticipation of the case proceeding the next day. In that context, I am satisfied that, to the extent that the Plaintiff suffered any disadvantage from the late delivery of the court book, any such prejudice was remedied, as Mr Armfield submits. The Plaintiff was subsequently made aware of the process to be followed in the event that she wished to make an application for a further adjournment but has failed to avail herself of that process. 7. I accept that conducting litigation may be stressful and tiring for the Plaintiff and that she has the right to present her case. However, I cannot ignore the interests and rights of the Defendants to have their case heard, the interests and position of other litigants in this Court or the requirement that the proceedings be conducted consistently with the case management principles to which I have referred. As has been recognised, there are limits to the extent that a party will be accommodated in the conduct of litigation: Hamod at [141]. 8. Weighing up all of the above matters, I do not consider that the interests of justice would be best served by vacating the hearing dates and adjourning the matter back to the "Judges List for further directions", as the Plaintiff suggests. The conclusion I have come to is that I should proceed to hear the matter commencing at 10am tomorrow (30 June 2022), even if that means the hearing will proceed in the absence of the Plaintiff. Having regard to the time now, it is too late to start the hearing today. Starting the substantive hearing tomorrow will also provide the Plaintiff with another opportunity to attend to give evidence in support of her case, either in person, by video link or by telephone. 9. Finally, I should say something about the Plaintiff's reference in her email from this morning to the "Conflict of Interest" for me to hear the matter. While it is not clear to me what the Plaintiff meant by that reference, assuming it was intended as some form of application for me to disqualify myself from hearing the matter, I reject that application. Relying on the test for apprehended bias, as referred to in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] and [8]), I am not persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide. In circumstances where the Plaintiff agreed to the revised timetable that provided for the hearing to start on Tuesday, the Court granted a further adjournment until today and opportunities were given to the Plaintiff to appear remotely and make any applications, there does not seem to me to be a logical connection between me granting the Defendants their application for the hearing to proceed in the Plaintiff's absence and an apprehension that I would not bring an impartial mind to the issues which are ultimately to be determined, such as whether probate of the deceased's 20 August 2015 will in solemn form should be granted to the Executor. 10. For these reasons, I make the following orders: 1. Grant the Defendants' application to proceed with the hearing in the absence of the Plaintiff. 2. Direct the Defendants' solicitors to notify the Plaintiff that the hearing will proceed at 10.00am on 30 June 2022 irrespective of whether the Plaintiff attends the hearing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2022