Where a party fails to turn up to their hearing without a reasonable excuse, the Court may order that the hearing proceed in the absence of that party. The Estate of Alberto Magri provides an example of the circumstances in which the Court will proceed in the absence of one party.


The deceased, Alberto Magri, left an estate valued at approximately $800,000 to be divided equally between six children and his wife. The deceased's daughter Erica, the Plaintiff, commenced family provision proceedings.

The proceedings were set down for a four-day hearing commencing on 27 June 2022. However, on 25 June 2022, it was discovered that the Defendant had failed to serve the Plaintiff with the Court Book. Accordingly, the Plaintiff appeared on 27 June 2022 and successfully sought an adjournment until noon the following day.

Non-Appearance of the Plaintiff

On 28 June 2022, at 10.29am, the Plaintiff sent an email to the Court informing them that she would not be attending the hearing. The Court informed the Plaintiff that she was required to appear in Court; however, she did not appear when the matter was called. The Court adjourned again until 2pm the following day and informed the Plaintiff that they might deal with the claim in her absence if she failed to appear again.

In response to the Court's correspondence, the Plaintiff sent a copy of a medical certificate providing that the Plaintiff was undergoing medical treatment and was unfit for work. The certificate did not identify what illness or medical condition which the Plaintiff was suffering from.

The Plaintiff did not appear on 29 June 2022 and sent through a further medical certificate from a different medical practice providing that she was unfit for work. This certificate also did not identify the medical condition the Plaintiff suffered from.

Application for Undefended Hearing

Upon the Plaintiff's non-appearance, the Defendant sought that the case proceed in the absence of the Plaintiff. In determining that the application should proceed without the Plaintiff. In determining that the application should proceed without the Plaintiff, the Court noted the following:

  1. The Plaintiff had failed to make an application for an adjournment.
  2. The medical certificates could not be relied on because they did not identify the document who prepared it, nor did they provide any detail or explanation of the medical condition the Plaintiff was suffering from.
  3. The case had already been the subject of significant delay and incurred substantial costs in circumstances where the estate was relatively small.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.