Wilkinson v Bonnici

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)

1. 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.

2. 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

3. 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).

4. The proceeding progressed through various case management stages. On 12 April 2024, the proceeding, which at that stage included issues regarding a contest (formalised by a cross-claim and defence to cross-claim) over probate of Wills of the deceased, was simplified. Slattery J noted that the plaintiff no longer pressed paragraphs 1 to 5 of the then amended statement of claim filed on 31 January 2024, nor contested the validity of certain Wills of the deceased dated 18 April 2019 and 17 January 1985. It was noted that the plaintiff only pressed family provision relief. His Honour ordered that the Will dated 18 April 2019 be admitted to probate. Consequently, the dispute regarding the family provision claim has been formalised by a further amended statement of claim filed on 12 April 2024 and a defence filed on 17 June 2024.

5. There was a mediation of the matter on 30 September 2024, which was unsuccessful. Since that time the parties have progressed the matter towards a hearing.

6. On or about 5 June 2025, Registrar Walton listed the matter for hearing before me for two days, being 8-9 July 2025.

7. On 10 June 2025, the matter was listed before me and I made certain pre-trial directions. On two further occasions, being 26 June 2025 and 3 July 2025, I made further orders in relation to the matter to progress to hearing.

8. In the late afternoon on Friday 4 July 2025, there was correspondence as between counsel and my Associate as follows:

9. at 3.59 pm, Mr Martin, counsel for the plaintiff, sent to my Associate, seemingly with the awareness of Mr Yazdani, an email in the following terms:

Dear associate

I am writing to you, having spoken to Mr. Yazdani a little earlier this afternoon about that which I need to inform the Court, below.

I have taken unwell overnight and my general practitioner suspects I have contracted the virus RSV, pathological examinations having been conducted but not yet returned. In his estimation, I will be quite unwell for at least 3-4 days.

That timing obviously presents a profound problem for me to be able to faithfully discharge my ethical duties both to this Court and to my client, as I do not expect I will have much, if any, capacity for either ongoing preparation or the physical ability to appear in Court for 2 days.

I am a little at a loss as to how to proceed at this point as this is not a circumstance with which I have ever had to deal previously. I thought it prudent as a first step to inform his Honour of the problem as early as possible.

I have instructions to apply for the adjournment of the hearing for as short a period of time as is convenient to the Court. That course is not desirable and one with which I do not engage lightly but having regard to the above, I do not see any other way.

One course may be to list the matter for directions on Monday morning and any application may be made then. I would need to seek leave to appear by AVL at that time, if his Honour were so minded.

I regret I am not able to provide a more pragmatic solution to the problem and whilst I do not ask for judicial advice, I would be most grateful if you could indicate how his Honour would prefer to deal with this communication.

Yours faithfully

2. at 4.24 pm, my Associate sent to the counsel in the matter the following email:

This email is sent on behalf of his Honour

Dear Practitioners,

His Honour has considered the email of Mr Martin which has been sent at least in a context in which Mr Yazdani has been spoken to.

His Honour will list the matter at 9 AM on Monday, 7 July 2025 for any application to adjourn/vacate the hearing to be made and otherwise for mention.

His Honour notes that the position of the defendants to any such proposed application for adjournment has not been foreshadowed in the email.

It would be of assistance to his Honour to know prior to Monday morning what the position of the defendants is regarding the proposed application, if that is able to be indicated.

To the extent that it is relevant, his Honour notes that if the hearing is to be vacated (whether by consent, non-opposition or over opposition), it is not evident how quickly another hearing can be secured. Listings of matters for hearing are within the province of the Chief Judge in Equity in consultation with the Registrar in Equity.

THE COURT IN CHAMBERS:

1. Orders the matter be listed at 9 AM on Monday, 7 July 2025 before Meek J for any application to vacate the hearing to be made and otherwise for mention.

Kind regards,

3. at 4.45 pm, Mr Yazdani sent an email:

Dear Ms Mazurkiewicz,

Thank you for your email. My instructions are to strenuously oppose any proposed application for the vacation of the hearing dates.

I am in a hearing before Slattery J commencing at 9:30am on Monday and I would be most grateful if the directions hearing could please be listed slightly earlier at 8:45am so that I may be able to depart his Honour’s courtroom by about 9:20am.

Kind Regards,

9. Consequent upon Mr Yazdani's request for an indulgence for an earlier listing of the matter this morning, which I acceded to, the matter was listed at 8.45 am. Mr Yazdani appeared for the defendants and Mr Martin appeared by AVL. Mr Martin sought to rely upon material in a draft form of affidavit of his instructing solicitor, Ella Stratford. In the time between Friday and the listing of the application this morning, Ms Stratford was not able to formally affirm the affidavit. Nonetheless, Mr Yazdani had no objection to the affidavit being relied upon. In the circumstances, I noted the contents of the affidavit on the basis that Mr Martin indicated that the affidavit would be able to be affirmed by Ms Stratford later that day. He indicated that there would be no substantial change to the content of it.

10. Mr Yazdani, for his part, relied upon costs affidavits that had been sworn by his instructing solicitor, Colin Rowlinson, on 20 June 2025, setting out the costs incurred in the proceedings, or at least an estimate thereof, and also the affidavit of Adrian Corbould, the solicitor on the record for the plaintiff, affirmed 27 June 2025, setting out the plaintiff's costs.

11. I note that Mr Corbould indicates Turnbull Lawyers are acting on behalf of the plaintiff on a conditional agreement, which contains an uplift factor. As of the date of that affidavit, the plaintiff's legal costs were indicated as being $185,000 inclusive of disbursements, counsel's fees, uplift and GST. He estimated further legal costs to the conclusion of a two day hearing including disbursements, counsel's fees, uplift and GST, would be $48,000, making the total legal costs in the order of $233,000. It is not entirely clear whether those estimates of costs are solicitor/client costs or party/party costs. Mr Corbould also indicates that where disbursements and filing fees are paid by Turnbull Lawyers, there will be a GST charge to the plaintiff upon finalisation of the matter.

12. In addition, Mr Yazdani also relies on paragraph 3 and 10 of the affidavit of Jacqueline Angela Bonnici sworn 19 June 2025:

3 I was born [in 1947] and am 78 years of age.

10 I continue to have the following diagnosed conditions and health concerns:

(a) Hypertension (medicated);

(b) Cervical radiculopathy (I will need to undertake another MRI scan and will need to see another neurosurgeon as I have significant pain whenever I turn my neck to the right);

(c) Spinal degeneration;

(d) Bulging discs and spurns;

(e) Torn meniscus;

(f) Squamous skin cancers;

(g) Cataracts (I have had to defer my cataract surgery due to the stress of being involved in these proceedings); and

(g) Cardiac arrythmias.

Submissions

13. Mr Martin provided an outline of submissions on the adjournment application. He indicated he did so because, apart from it being of some assistance to the Court, he had difficulty speaking and it would obviate, to some extent, the need for him to speak. Relevantly the outline stated:

2. The principal reason for the adjournment is, as I communicated to the Court on Friday afternoon, I have contracted the RSV virus.

3. I am and have been very ill since Friday. An affidavit of my instructing solicitor is read in support of the application which deposes to my health, although I do not understand there to be any suggestion by the defendants’ counsel that I am not sick after I spoke with him on Friday afternoon and informed him that an application would be made to vacate the hearing as a result.

4. In my submission it would not have been possible, even if my client had wanted to do so, to find another counsel to take my place:

a. the hearing (as of Friday) was one business day hence;

b. this matter has a history of some 2 years and I have been involved with it from the outset;

c. I am acting on a conditional fee basis; and perhaps most importantly

d. I am my client’s counsel of choice.

5. Having that long history, this hearing was fixed very promptly after the last interlocutory step (concerning subpoenae) was resolved, such that there has not been an inordinate period of time between the matter being ready and a date being given. I accept that may not be the case with any adjourned date.

6. In my submission it would be unethical of me to attempt to appear at the hearing on 8 July, both from a health standpoint as well as not being in a position to discharge my duties to my client.

7. I accept of course that the situation is not ideal however it is out of my control.

8. In my submission the administration of justice is best served by the adjournment of the hearing to the registrar for a new date to be fixed. A not dissimilar situation was encountered by the Court of Appeal in Khattar v Khattar; Fayad v Khattar [2022] NSWCA 237 where counsel had become unavailable the day before related appeals were to be heard because of Covid-19. In that instance, the appeals were adjourned and I respectfully say that that is what should happen here.

14. Mr Yazdani made a number of oral submissions as follows.

15. First, he contended that the matter was a very simple family provision case with three witnesses, with the plaintiff having three affidavits and a court book being 382 pages in length.

16. He submitted that all the pretrial directions had been complied with, with the exception of the plaintiff's submissions. He sought to distinguish the present matter with my decision to vacate the hearing in Erem v Moussa; The Estate of Mary Moussa [2023] NSWSC 536 by pointing to (in that matter) the lengthier hearing, lengthier Court Book, non-compliance with pre-trial directions, the need for applicant’s counsel to cross-examine first and the complexity of the subject matter.

17. Secondly, he submitted that there was no evidence that steps had been taken to obtain alternate counsel. He cited a statistic apparently drawn from the New South Wales Bar Association website asserting that there are 2,468 counsel practising in New South Wales and intimated that the plaintiff had an opportunity to engage alternate counsel who, in his submission, could very quickly get across the material.

18. Thirdly, he submitted that in the post COVID-19 era, notwithstanding that people may become ill, “the wheels of the administration of justice must proceed” and “courts have learned to work around ill practitioners whilst at the same time not effectively bringing the administration of justice to a halt”. He further submitted that the fact that Mr Martin was able to appear this morning (albeit remotely), and had prepared submissions (which I note were brief), “simply confirms” that the hearing can proceed with Mr Martin appearing via AVL.

19. Fourthly, he submitted that the defendants would suffer significant prejudice if the hearing dates were vacated. He intimated that a hearing date might not be allocated until much later in the year. He relied on the fact that the first defendant is an elderly lady, 78 years of age, with significant health issues and that significant costs have been incurred in what he submitted was a small estate and “if hypothetically costs were paid out of the estate, the estate will dwindle under a million dollars”.

Principles

20. I set out the principles regarding the Court’s power to adjourn the hearing of proceedings based upon illness of counsel in O’Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839:

49. There is a statutory power pursuant to s 66 Civil Procedure Act 2005 (NSW) (CPA) and the Court has an inherent power to adjourn or vacate proceedings.

50. The statutory power to adjourn is to be exercised in accordance with the overriding purpose of the civil procedure legislation and rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

51. The Court in deciding whether to make any order for the management of the proceedings, including an order considering the granting of an adjournment of proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.

52. For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA, and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.

53. The provisions of s 58(2)(b) CPA are as follows:

“(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

…

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.”

54. There is extensive case law dealing with the principles in respect of an adjournment.

55. Recently in Sinclair v Creenaune [2022] NSWSC 230 Hallen J in delivering reasons for judgment in respect of a family provision application in which an adjournment was sought, helpfully referred to a degree of this case law at [84]–[93].

56. In particular, Hallen J referred to the decision of the Western Australian Court of Appeal in Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, in which the Court of Appeal emphasised that the rules of procedural fairness are not fixed or immutable, and noted that procedural fairness is directed to avoiding practical injustice and observed that what is necessary to avoid practical injustice will depend upon the circumstances of any given case: at [51].

Determination

21. The catalyst for the contact to the Court foreshadowing the potential application to vacate the hearing dates was the plaintiff’s counsel contracting RSV. On 4 July 2025 (that is Friday), he emailed my Associate regarding the issue. There is no suggestion that he had delayed in any untoward manner in bringing his condition to the attention of the Court. There is no suggestion that the reason for the requested adjournment has arisen because of any default of the parties. Illness is one of the exigencies of life that is out of control of the parties.

22. It is clear from the above principles that whether a counsel is able to prepare and conduct a hearing is but one of a number of considerations that bear upon the determination as to whether the date should be vacated or not.

23. In some cases, even if the Court proceeds upon the basis that the counsel is not able to prepare and conduct the hearing, the Court may nonetheless decline to vacate the hearing date, if for example other representation can be obtained or there has been ample opportunity for other representation to be obtained.

24. In light of Mr Yazdani's submissions, I sought to clarify whether he was seriously challenging Mr Martin's assessment of his ability to continue with the matter. I asked whether the tenor of Mr Yazdani's submission was that counsel should simply “soldier on”. He confirmed that that was the tenor of his submission. In his email of 3 July 2025, Mr Martin indicated that in his doctor’s estimation he would be “quite unwell for at least 3-4 days”. Mr Yazdani relied on that for his submission that, factoring in Friday, the fourth day would be Tuesday. Mr Yazdani then indicated the hearing could commence and finalise on Wednesday, submitting that there is no reason why the hearing cannot conclude in one day. Pausing there, it is not evident to me that the case can be necessarily completed within one day. It is listed by the Registrar before me with an estimate of two days.

25. I asked Mr Martin whether his estimate of his condition had changed since Friday, to indicate whether, with some time, he may be able to appear.

26. In the form of a representation from the “bar table”, Mr Martin confirmed that based on his 16 years at the Bar and a number of years as a solicitor, his assessment was that he was not in any capacity to discharge his duties to the Court if he were to appear on Tuesday or Wednesday.

27. The Court in some limited occasions acts upon representations of legal practitioners without admissible evidence supporting such representations. Hodgson JA in Equititrust Ltd v Manttan [2010] NSWCA 95 explained the discretion a judge has in this regard at [5]:

There is some force in Mr Young’s submission about the lack of evidence about urgency concerning completion of this particular sale. There was material put to the primary judge from the bar table suggesting such urgency, and the primary judge took the view that he could appropriately act on that. In my opinion there is an element of discretion in a judge hearing an urgent application of this kind to act on information that may not be supported by proper evidence, and I am not prepared to hold in the circumstances that the primary judge was necessarily wrong in having regard to what he was told from the bar table.

28. For example, McCallum J in Westpac Banking Corporation v Diagnose [2014] NSWSC 1623 at [11] and [13] accepted a representation from the bar table in light of the urgent circumstances. In the duty matter Danwer v Nine Network Australia [2016] NSWSC 95 at [3], Button J considered explanations from the bar table in light of the lack of affidavits and oral evidence.

29. As I observed in Gerstenmeier v Gerstenmeier [2024] NSWSC 712:

81. On some occasions, such as urgent interlocutory applications, the Court will act upon statements of legal practitioners asserting a particular factual position. That is generally, or at least often, done upon the legal practitioner warranting (expressly or otherwise) to the Court that what the legal practitioner is stating orally is to the best of the legal practitioner’s honest belief, and in due course capable of being made good by admissible evidence.

82. Further, on a hearing, sometimes there may be a degree of leeway given for legal practitioners to inform the Court of factual matters relied upon “from the Bar table”, without any formal evidence in support of them. Such leeway may be warranted where the matter recited to the Court is given with the consent of the opposing side, or is in respect of matters of which there is no genuine dispute.

30. In light of the urgent circumstances and the content of Mr Martin’s representation, I consider this is one of those circumstances where it is appropriate to accept a representation from the bar table. I note that Ms Stratford later in the day did affirm and e-file an affidavit in precisely the same terms as her draft affidavit which included a statement to the effect that Mr Martin had confirmed to her that his test swabs had confirmed positive for the RSV virus.

31. Leaving aside cases where by reason of illness it is self-evident that legal practitioners cannot prepare or appear (such as where the practitioner is hospitalised), the assessment of whether counsel affected by illness, is able to effectively prepare and conduct a hearing will be fact specific.

32. Quite often in law, legal representatives will work and counsel will continue with a hearing notwithstanding that their health is, to some degree, compromised. However, other times, legal practitioners will experience illness or conditions at a degree such that they are not able to effectively fulfil their duties to the Court and their client.

33. Even in cases where the Court is assisted by medical evidence, the Court nonetheless normally has some regard to the frank self-assessment of the practitioner in question in considering the issue.

34. Stoicism might in some quarters be an expected or commendable quality. However, the Court does not require counsel to be especially stoic nor necessarily “soldier on” if they have reached a considered and informed assessment that they are unable to effectively prepare and conduct a hearing.

35. In this case, counsel, a highly experienced legal practitioner, has solemnly informed the Court that, having contracted the RSV virus and with some indication from his doctor that he might expect to be “quite unwell for at least 3-4 days”, in his assessment the effect of the virus on him is such that he cannot properly discharge his duties in preparing for and conducting a hearing due to imminently commence. In the exigent circumstances, I do not propose to “second-guess” his assessment of his inability to discharge his duties but rather to act upon his solemn statement to the Court as one of the matters to be weighed in determining whether to vacate the hearing or not.

36. The matter was commenced with some degree of complexity, including contested probate claims. However, as I have mentioned, the probate claim, at least from April 2024, was not pressed, essentially leaving only the family provision claim in dispute. The issues in the family provision claim are not strictly complex.

37. However, leaving aside the costs affidavits, there are 3 affidavits by the plaintiff, 9 affidavits between the defendants in total, in addition to the bundle of documentary material drawn from various affidavits.

1. Order that the hearing listed before Meek J to commence on Tuesday, 8 July, 2025 be vacated.

2. Order that the matter stand over before the Equity Registrar on Thursday, 17 July, 2025 for the purpose of allocating a further hearing date in the matter.

3. Order that the costs of and incidental to the application to vacate the hearing dates be the defendant's costs in the cause.

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