What happens if a matter is listed for hearing and the other party does not turn up to Court, can the hearing proceed?

16/07/2014

Before the Court there are matters listed for hearing and there are also matters listed for other directions and mentions and other procedural matters.

Usually when the matter is listed for procedural matters and the other side does not turn up the matter will be adjourned (and the non-attending party may be ordered to pay the costs). In those circumstances, the Court may in the absence of the non-attending party, make directions and procedural orders to progress the hearing of the matter.

Where there is a matter listed for hearing of either an interlocutory or application in a case or for a final hearing, if one party fails to attend Court then the matter may proceed by way of an undefended hearing. However, certain factors must be satisfied before a Court will allow you to proceed in this manner. These factors include:

1. Ensuring that the other party has been afforded procedural fairness. This means that the party who is wishing the matter can proceed by way of undefended hearing can prove that the other party is aware that the matter is before the Court on that day, and, that it will be heard in their absence on that day.
2. An affidavit proving service of the Application is often required and in addition, an affidavit proving that notice has been given to the other party is also required. This means that two affidavits will need to be prepared by your solicitor.
3. Just because the other side has not appeared before the Court; at the hearing your solicitor will still need to make submissions satisfying the Court that the relevant facts exist to achieve the orders you are asking the Court to make.
4. This means for example, in a property matter evidence in appropriate form will be required to be provided to the Court to establish:
   1. The identification and valuation of all the parties’ assets, liabilities and resources at the date of the hearing;
   2. The identification and assessment of the parties’ contributions;
   3. Address the Court as to what is referred to as the “future needs factors” such as age, health of the party, income, earning capacity, whether a party is the primary caregiver to a child under the age of 18 years, and the like;
   4. Whether the ultimate division of property between the parties is just and equitable in the circumstances of the case.
5. Because the other party is not present to agree on such matters as to the value of particular items of property, then in these circumstances a market appraisal unless expressing the qualifications of the person giving the appraisal will not be sufficient to satisfy the Court and an expert valuation report may need to be first obtained.
6. Valuation reports can take some time to prepare as the report writer needs to gain access to review the property (real estate or other) and undertake necessary research to enable the expert to prepare the valuation of the property to be valued.
7. Therefore if issues of value have arisen earlier in the hearing and you cannot obtain agreement as to the value of assets, it may be in your interests to instruct your solicitor to obtain a valuation report earlier in the proceedings despite the extra costs involved.
8. If other matters are relevant to your case such as health issues then appropriate evidence must also be obtained of these matters.

Your solicitor will be able to advise you further as to the approach the Court will likely adopt if the other party fails to participate in the proceedings based upon the individual circumstances of your case.

Opinions as to value or “causes” of events can only be given by appropriate expert evidence.