Bar-Mordecai v Rotman - [2000] NSWCA 123

NEW SOUTH WALES COURT OF APPEAL

CITATION: Bar-Mordecai v Rotman & Ors [2000] NSWCA 123

FILE NUMBER(S):
40568/98

HEARING DATE(S): 6 - 9 December 1999

JUDGMENT DATE: 16/05/2000

PARTIES:
Michael Jacob Bar-Mordecai (Appellant)
Selma Rotman (1 Respondent)
Alex Hillston (2 Respondent)
Alan David James Hillston (3 Respondent)

JUDGMENT OF: Sheller JA Stein JA Giles JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): EQ 120009/94

LOWER COURT JUDICIAL OFFICER: Einstein J

COUNSEL:
In person (Appellant)
J B Whittle SC - (1/2/3 Respondents)
B J Burke - (2/3 Respondents)

SOLICITORS:
Appellant - n/a
Stewart Levitt & Co Solicitors (1 Respondent)
Shaw McDonald (2/3 Respondents)

CATCHWORDS:
PROBATE - whether will revoked by tearing up - presumption as to revocation of will - renunciation of probate - existence of de facto relationship - revision of ex tempore judgment - bias - alleged perjury of witnesses - credibility of evidence - ND

LEGISLATION CITED:
Wills, Probate and Administration Act 1898,
ss 17(3)(b), 32G, 61B(2), 61B(3A), 74(c)(i), 75(1)(a)
Evidence Act 1995, s 128
De Facto Relationships Act 1984

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40568/98
ED 120009/94
SHELLER JA
STEIN JA
GILES JA

Tuesday, 16 May 2000

BAR-MORDECAI v ROTMAN & ORS
This appeal concerns the estate of the late Eveline Hillston (the deceased) who died in 1994, aged 83. The appellant, Michael Bar-Mordecai, claimed to be entitled to the whole of the estate on intestacy, the deceased having revoked her August 1989 will by tearing it up in front of him in 1992. He also claimed that he was her de facto husband within the meaning of the Wills, Probate and Administration Act 1898. The trial judge found against the appellant on both these issues, finding that the appellant had himself destroyed or suppressed the 1989 will after the death of the deceased. His Honour found that no de facto relationship had been established. The appellant appeals these findings.
The appellant also appeals from the trial judge’s finding that the appellant had renounced probate of the 1989 will, and his Honour’s grant of letters of administration with the 1989 will annexed to the third respondent Alan Hillston.
The principal grounds of appeal are that the trial judge failed to recognise the relevance of the appellant’s memory deficit, failed to explain the effect of the Jones v Dunkel rule and revised his reasons after their ex tempore delivery. These and other aspects of the trial judge’s conduct were alleged to demonstrate actual bias. In addition the appellant maintained that there were many fact finding errors made by the trial judge on material matters and that the respondents’ witnesses had perjured themselves.
The appellant sought to rely on a large number of affidavits said to be admissible in the appeal as ‘fresh evidence’. The reception of these was, in very large part, refused.
Held (The Court):
The findings made in relation to the alleged destruction of the will were open to the trial judge: the appellant’s evidence was incredible, riddled with critical inconsistencies and lacking in corroboration. The facts of the case leave no room for the operation of the presumption as to revocation. The onus on the appellant to establish the basis for the operation of the presumption was not discharged.
There are no grounds for disturbing the trial judge’s finding that the appellant was not a de facto husband of the deceased.
The appellant’s claim of memory deficit had and has no real part to play in assessing the evidence given at the trial and the trial judge’s findings on the evidence. The suggestion of unfairness on the part of the trial judge in not mentioning the report of Dr Reid in his judgment is unfounded.
There was no error in the trial judge taking into account the failure of the appellant to call evidence from a number of persons and making findings on the basis that the evidence of those persons would not have assisted the appellant. The appellant was well on notice throughout the trial of the inference, properly available, pursuant to the rule in Jones v Dunkel.
Any revisions made by the trial judge to the ex tempore judgment were appropriate and permissible, having no effect on the substance of the reasons and making no difference to the result on the critical issues for determination by the Court.
There is no material to suggest bias on the part of the trial judge, actual or apprehended.
None of the credit findings made by the trial judge regarding witnesses’ evidence should be disturbed. The appellant’s suggestion of perjury by some respondent witnesses is misconceived.
It was appropriate for the trial judge to put aside the appellant as the person to have probate of the will of the deceased, on the basis of the statutory provisions and the inherent jurisdiction of the Court.
Appeal dismissed with costs.
OoO
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40568/98
ED 120009/94
SHELLER JA
STEIN JA
GILES JA

Tuesday, 16 May 2000

BAR-MORDECAI v ROTMAN & ORS
JUDGMENT

THE COURT:
Introduction
Dr Michael Bar-Mordecai appealed from a decision of Einstein J in reasons delivered ex tempore on 16 June 1998 following a lengthy trial. The appeal concerned the estate of the late Eveline Hillston (the deceased), who died on 25 June 1994 at the age of 83 years. The appellant claimed to be entitled to the whole of the estate on intestacy pursuant to s 61B(2) of the Wills, Probate and Administration Act 1898 (the Act). He claimed that the deceased revoked her will made on 31 August 1989 by tearing it up in front of him in August 1992, and that she made no further will prior to her death. He further claimed that he was the de facto husband of the deceased within the meaning of ss 32G and 61B(3A) of the Act.
His Honour found against the appellant on both of these matters, indeed he found that the appellant had himself destroyed or suppressed the 1989 will after the death of the deceased. The appellant challenged his Honour’s findings, and said that he was in error or his findings were vitiated in numerous ways set forth in the amended Notice of Appeal.
Dr Bar-Mordecai also appealed from a decision of Einstein J delivered on 14 August 1988, in which he found that the appellant had renounced probate of the 1989 will. His Honour granted letters of administration with the 1989 will annexed to the third respondent Alan Hillston.
Amongst the issues raised by the appellant in the amended Notice of Appeal were his Honour’s failure to recognise the relevance of his memory deficit, allegedly caused by a car accident he suffered in early 1992, his Honour’s failure to explain the effect of Jones v Dunkel (1959) 101 CLR 298, and the revision of his Honour’s reasons after their ex tempore delivery; these and other aspects of his Honour’s conduct of the trial were alleged to demonstrate actual bias. The appellant maintained that there were many errors of fact finding by his Honour on material matters, and that the respondents’ witnesses had perjured themselves.
The principal grounds of appeal directly challenged his Honour’s findings on whether the deceased had revoked her will by tearing it up in August 1992 in the appellant’s presence and whether the appellant and the deceased were de facto husband and wife within the meaning of the Act at the time of her death. There was also a challenge to his Honour’s associated finding that the appellant had come to occupy a special position of influence over the deceased and that he unconscientiously abused that position of influence, and a separate challenge on the question of renunciation of probate.
In examining the trial and his Honour’s extensive reasons, it is important to note that the trial proceeded on an agreed basis for reception of statements made by or attributed to the deceased. The agreement was that all evidence of statements made by the deceased orally, or in any written document, would be admitted as evidence not only of the making of the statements, but of the truth of the facts the subject of the statements. The agreement did not affect the entitlement of any party to test the credit of a statement of a witness of what he or she had attributed to the deceased or to test the veracity of any document said to have been written by the deceased.
Further evidence on appeal
At the commencement of the appeal the appellant sought to rely upon a large number of affidavits said to be admissible on the appeal as ‘fresh evidence’. These were in part affidavits in existence as at the trial but either not read or read but then withdrawn by the appellant and in part affidavits brought into existence since the trial. For the most part we refused to receive the affidavits, in all instances but one giving our reasons at the time. The exception was that on 9 December 1999, when we refused to receive the affidavit of Gavin Albert Askew sworn 29 December 1996, we said that the reasons for our decision would be given as part of the reasons for judgment on appeal.
The appellant had relied upon Mr Askew’s affidavit at the trial. When the affidavit was read, Einstein J rejected some paragraphs but gave leave to the appellant to adduce oral evidence about the matters deposed to in those paragraphs. The matters include a conversation that Mr Askew said he had had with the deceased.
On 20 May 1998 the appellant called Mr Askew, who gave some evidence in-chief about what he observed of the relationship between the deceased and the appellant. After an adjournment and one more question and answer, the transcript records that the witness was stood down and other witnesses interposed. Later on the same day Mr Askew was recalled. Cross-examination by Mr Whittle SC, who appeared at the hearing for the second and third defendants, began immediately. In part, this was directed to matters of credit including the medical condition of Mr Askew. During this cross-examination, the trial judge said:
Mr Whittle one of the matters which concerns me is where one has a witness who has a serious condition and where I don’t have any medical information which can assist me, plus questioning by yourself, and indeed matters which I would have perhaps sought to ask this witness about what I think is appropriate as Dr Bar-Mordecai is the witness’ medical practitioner, for Dr Bar-Mordecai to give some consideration overnight to whether he has any advice which he may wish to give to the witness about the matter, because first thing in the morning what I propose to do is ask the witness whether he feels in any form of discomfort in terms of sustained questioning. I apprehend that you have really only just commenced and when one finds that there is a witness whose health may be affected by the occurrence during the hearing, it strikes me that it is important for the court, as well as members of the profession, to understand it in order not to cause more difficulty than perhaps they appreciated they might.
The Court then adjourned. On 21 May 1998 the hearing resumed in open court. Before any further cross-examination of Mr Askew and during his absence from the court, Mr Whittle applied for Mr Askew’s medical records from 1 January 1998 onwards to be released. These documents had been produced to the Court under a subpoena to the appellant. The appellant indicated that he would like to release the documents to the Court and the Court to peruse them.
His Honour read the documents so described and produced. He raised with the appellant whether in respect to at least some of the documents there was an objection about the relevance of Mr Askew’s medical condition. The appellant said that his problem was not only that but matters that went to the interests of Mr Askew’s well being. On further perusal his Honour observed that in the material there was:
… a very sensitive passage which involves a disclosure to Dr Bar-Mordecai by the patient in a confidential situation and which, if the position was that the privilege was being pursued by Mr Askew on legal advice with a solicitor here in court, would probably be put on bases of a type which we know sometimes a Judge has to issue a certificate in respect of before requiring evidence to be given from the witness box.
Einstein J no doubt had in mind s 128 of the Evidence Act 1995.
The suggestion was made that Mr Whittle’s instructing solicitor approach the Law Society to obtain the advice of a pro bono solicitor able to attend in court at short notice. The appellant announced from the bar table that Mr Askew was agreeable that the parties look at the document and that Mr Askew did not want legal advice. Some discussions followed about self-incrimination. Mr Whittle submitted that Mr Askew had to be given the opportunity to get advice.
Einstein J suggested that Mr Askew be asked to come back into court. Mr Whittle then said:
May, I, through your Honour, inquire of one thing from Dr Bar-Mordecai, and it may shorten this whole matter. Just before he actually comes in he said that he would be asking for Mr Askew to stand down, not give any more evidence. Does that carry with it, as it has with other witnesses who have not been called for cross-examination, that his evidence simply not be regarded in the proceedings.
The appellant said that he was agreeable to that in terms of Mr Askew’s medical condition. After some further discussion, Einstein J said:
I will have it noted then, that in relation to the evidence taken yesterday from Mr Gavin Askew, the plaintiff has by reason of certain matter concerning the medical condition of the witness, and concerning documents sought by the defendants to be produced on subpoena from the plaintiff as Mr Askew’s general practitioner, to have the court discharge Mr Askew from further cross-examination, upon the basis that no evidence given by Mr Askew, whether on affidavit or orally, is to be taken into account in the determination of these proceedings. That is an application which the plaintiff makes and which both defendants are content to agree with, and in those circumstances, the evidence before the court will exclude from consideration, all affidavit evidence thus far read in relation to Mr Askew, and all oral evidence taken from Mr Askew. On those basis [sic], and by consent, Mr Askew is discharged from any further obligation to subject himself to cross-examination.
His Honour went on to say that those sections of the transcript relating to Mr Askew’s medical records would be sealed and that one copy only of the transcript of that morning’s proceedings from 9.30 am until then would be produced for the Court and not for the parties. His Honour added that on close examination of the transcript he would make any orders which he considered necessary to release any part of it and to ensure that sections of it which were sensitive remained the subject of a permanent order of non-disclosure. Einstein J does not appear to have made any further order about this part of the transcript. We note that those parts of that transcript which we have set out or summarised for the purpose of giving these reasons are, to that extent, now excluded from his Honour’s order, which otherwise stands.
The appellant has shown no sound ground for permitting him now to rely upon Mr Askew’s evidence. After the benefit of an overnight adjournment at the trial, the appellant decided to withdraw the evidence.

In support of his application in this Court, the appellant said that Mr Askew’s was a special case.
In the previous cross-examination Mr Whittle was extremely rough and wanted to get Mr Askew out of the proceedings as best he could. And he succeeded because I felt sorry for Mr Askew. In this situation now, what I feel is that Mr Askew should really be represented by a public solicitor and barrister so that his rights as an individual because he’s a pensioner, should be protected.
Asked by Stein JA if he was saying that he would like to see Mr Askew legally represented if his evidence were permitted to be read and he was cross-examined, the appellant said:
If the Court sees fit, yes, in view of the way Mr Whittle behaved previously. I don’t want to be derogatory but it was extremely rough, unnecessary and nothing at all related with the Eveline Hillston estate. And what was goading Mr Whittle was Justice Einstein and his behaviour. It was like a gang of two. Mr Whittle today showed how good Justice Einstein was.
A reading of Mr Whittle’s cross-examination of Mr Askew reveals no impropriety, and nothing to indicate that Einstein J was assisting him. Mr Whittle was performing his duty as the representative of his clients.
Einstein J, quite properly, was in the course of making arrangements for Mr Askew to receive independent pro bono advice from a solicitor. That would have enabled his Honour to deal with any application on behalf of Mr Askew to claim privilege on the ground of self-incrimination for material which seems to have gone only to Mr Askew’s credit. That matter having been dealt with, cross-examination on the admitted material could have proceeded. His Honour would no doubt have been sensitive to any attempt by the cross-examiner to cross-examine unfairly. The appellant deliberately chose to withdraw the witness, and in our opinion there is no basis in that circumstance or in the circumstances that have emerged about the nature of Mr Askew’s evidence that would support the appellant’s application to be permitted to rely upon the material contained in the affidavit in this Court.
The judgment at first instance
While the judgment is very long, taking in excess of two days to be delivered ex tempore, it is useful to summarise it in order to understand the issues which present themselves for determination in the appeal. The central findings of his Honour as to revocation and the existence of a de facto relationship between the appellant and the deceased revolved around the credibility of the appellant.
His Honour found that the appellant’s evidence was unreliable, that it was tailored to further his case and that it was either false or only true in part. The appellant, according to his Honour, was prone to gross exaggeration. Where his version could not be tested by reference to the evidence of other witnesses, eg his claim of destruction of the will by the deceased, his Honour found that the appellant was ‘generally content to favour his case at the expense of the truth’.
His Honour made some specific findings of untruths by the appellant. For example, his Honour noted that the appellant was asked the following question in cross-examination:
… would you not have expected that having torn up the August 1989 will, in terms of [the Deceased’s] character, she would have been very likely to have gone and made another will very shortly after that …
The answer was ‘definitely no’ - the Plaintiff seeking to support the answer by the suggestion that the Deceased in 1990 had said to the Plaintiff that she wanted to revoke her will.
His Honour said that the answer was a clear untruth and that the ‘evidence very amply established that the Deceased was a person of strong and independent character who would not have left her affairs in a state of disarray’.

Another example is the following evidence given by the appellant in cross-examination:
Q.       Did you know before or after Mrs Hillston’s death that a de facto spouse might have a claim on the estate of a fellow de facto spouse?
A.       I don’t think that issue really came into my head.
Q.       When did it come into your head?
A.       When she died.
Q.       In other words you are saying the period immediately following her death?
A.       It really all hit me when I was distressed on the Saturday.
Q.       It was on the very day she died that you realised you may have a claim on her estate?
A.       Yes.
His Honour said that this was another answer which was a clear untruth.

Two other examples are the evidence of the appellant to the effect that the deceased tore up her August 1989 will in mid August 1992 and his evidence of having had intercourse with the deceased four times per week during their relationship. His Honour found both to be false.
Einstein J also referred to the failure of the appellant to call numerous witnesses which the appellant claimed corroborated his case. The appellant gave various reasons, at different points of time, for not calling them. His Honour noted that the appellant had been made aware of the significance of his not calling corroborative witnesses and the inference which may be drawn from such failure.
His Honour then turned to largely undisputed facts, the most salient of which are included in what follows.
The deceased was born in Romania in 1910. She married Jack Hillston in 1934. There were no children of the marriage. Jack Hillston died on 5 August 1983. The deceased had one sister, Selma Rotman, who died on 1 July 1997 leaving one child, Liviu Rotman, the first respondent. Jack Hillston’s brother Simon Hillston married Jane Hillston. Simon died in 1990. Jane and Simon Hillston had two children, Alan and Alex (Alexi). Both children married.
The deceased completed more than a year of medicine in Bucharest but changed to law, completing a three year course in 1933. She and Jack Hillston emigrated to Australia in 1938. Both Jack and the deceased followed separate careers, the deceased becoming a beautician in 1958 and opening her own salon in 1960. The deceased did not take up legal studies or the practice of the law in Australia.
The appellant was born in 1946 and graduated in medicine in 1975. He treated Jack Hillston in 1979 and thereby met the deceased. From 1981 he also treated the deceased. It seems that from the early 1980’s the appellant and the deceased became friends.
His Honour recorded that much of the evidence relied on by the appellant concerned information given to him in his capacity as a medical practitioner treating the deceased as his patient and later as both patient and alleged de facto spouse. Einstein J set out a medical summary page (as at 23 July 1993) from the appellant’s records. The document contains detail of a sort which is highly unusual in medical records. For example, it lists the deceased’s ‘personal wealth’ at ‘$2,000,000’; states that he was her ‘de facto’ with ‘Perfect Compat’(compatibility) and ‘Coitus 4 x week’ with ‘100% Orgasm Frequency’ with ‘Excellent’ orgasm quality. The record also states that the deceased had ‘never had sex with Jack’ (her husband) and that her ‘sex onset’ was at age 72.
His Honour found that the deceased did not give all of the information found in the medical records to the appellant and specifically rejected that she gave him the information which his Honour underlined in the judgment, much of which coincides with what we have mentioned above. His Honour said that he placed limited weight on the document. He was, in our opinion, correct to do so. In particular, his Honour rejected the appellant’s contention that the deceased was a virgin until the age of 72 when the appellant claimed to have consummated his relationship with her on 24 August 1983. His Honour also rejected the appellant’s evidence that the deceased had no idea about ovulation, conception, contraception or menstruation before late August 1983.
In 1980 the deceased made a will appointing Jack Hillston as sole beneficiary. In 1982 Jack Hillston suffered two strokes, and he was in a vegetative state from then until he died on 5 August 1983. During this period the appellant was of considerable help to the deceased and their friendship developed. After her husband died the deceased and the appellant started to have dinner together. His Honour rejected evidence of the appellant that the deceased invited him to move in with her. Rather, his Honour found that the suggestion was that of the appellant, and 2 ½ weeks after the death of Jack the appellant moved into the unit occupied by the deceased in Mount Street, Randwick. The appellant gave evidence that although the deceased wanted him to live with her, she wanted their relationship to remain confidential as she was concerned about their 36 year age difference. His Honour rejected this evidence.
His Honour chronicled various gifts and advances made by the deceased to the appellant from late 1983 until her death. These involved around $1,000,000, and we refer to them in more detail later in these reasons.
There was a period from 1 November 1985 until early January 1986 when the appellant moved out of Mount Street to live with Dr Lucy Ballin.
The appellant placed particular reliance on his account of the full sex life he had with the deceased. His Honour did not accept this account and rejected the allegation that the appellant and the deceased slept in the one bed for many years or had sexual relations on an average of four times per week from August 1983 until her death in 1994.
On 17 February 1986 the deceased made a new will. She appointed the appellant as one of her executors. She gave him a life estate in the property at 212 Clovelly Road, Clovelly, where the appellant’s surgery was located, with a right to purchase it for value. Her estate was otherwise to be distributed among her relatives.
His Honour recorded that in April 1986 the appellant made a video of the deceased, and that he informed his Honour the deceased was unaware of it being made. It was a ‘candid camera’, so the appellant said. His Honour found that the appellant took the video with the intention of later using it to claim that they were in a de facto relationship.
The appellant argued before us that the deceased was aware of the videoing and, because of his memory deficit disorder, he forgot to tell his Honour that it was taken with the deceased’s knowledge and consent. We return to this later in these reasons.
We have, at the request of the parties, viewed the video. His Honour set out some of the oral text of the video and made the following finding:
My finding is that Doctor Bar-Mordecai’s concern was with the Deceased’s assets and with entering into a relationship with the Deceased which would place him into the best possible position to become a beneficiary of those assets under a testamentary disposition or alternatively, to simply obtain benefits by gifts from the Deceased. He was able to take unfair advantage of the Deceased because of the relationship of trust and confidence which existed between them. He was able, without special effort, bearing in mind the age and physical infirmity of the Deceased, to achieve a position of dominion, ascendancy and reliance. It was not difficult for him to become, as no doubt he did, a very close friend indeed of the Deceased. However, close friendship in a doctor/patient situation is not to be equated to a de facto husband-wife relationship and even when the close friendship extended into a joint investment in the house property, this did not transform that friendship into a de facto husband-wife relationship.
In October 1987 the deceased sold the Clovelly Road property to the appellant for $360,000, subject to a mortgage back for $250,000. No cash changed hands. The appellant said that he made payments under the mortgage, and that in July 1993, 11 months before her death, the deceased signed a discharge of the mortgage indicating that she did not want to receive any more money from the appellant.
On 22 December 1987 the deceased made a further will in which the appellant was again appointed an executor. In this will she gave a life estate in the unit in Mount Street to the appellant with the right to purchase it at market value. The residue of her estate was to go to her relatives.
On 5 December 1988 the deceased purchased 30 Eastbourne Avenue, Clovelly for $665,000. While she used her own money for the purchase, it was placed in the names of herself and the appellant as tenants in common, one third to the appellant and two thirds to the deceased. Between late 1989 and early 1991 the Eastbourne Avenue property was substantially renovated, including the addition of a third level and a swimming pool.
On 23 July 1989 the deceased was admitted to hospital with a heart attack.
On 24 August 1989 the appellant made a will in which he appointed the deceased his executor and gave his estate to her with the exception of $200 each to his daughters, his parents and his brother.

On 31 August 1989 the deceased made a new will, seven days after the appellant. In this will she appointed the appellant as her sole executor and left the Mount Street unit to her sister, Selma Rotman, subject to giving the appellant the right to remain in occupation during his life. The residue was left to the appellant as to 5 per cent and to her relatives in various percentages. The appellant was given the right to acquire the Eastbourne Avenue property at market value.
The will was left for safe custody with Mr Freeman, the deceased’s solicitor. It was uplifted by the deceased in September 1990.
In February 1991 the deceased and the appellant moved from Mount Street to Eastbourne Avenue. The deceased’s will was kept in a compartment in a dining room console. No one knew about the hiding place save the appellant and the deceased. The compartment needed a key to unlock. To gain access to the compartment it was necessary to crouch or kneel on the floor. The appellant gave evidence that the deceased could not do this because of pain in her knees. However, in the appeal he said that this was another example of his memory deficit because the deceased and he did ‘floor exercises’, which would enable her to be able to access the compartment.
The appellant made a second video with the deceased between 19 April and 23 May 1992. His Honour dealt with the contents of the video in some considerable detail. We will return to it, although without repeating the same detail.
The appellant gave evidence that in July 1992 Mrs Jane Hillston demanded to see the will of the deceased and that the deceased refused. This was denied by Mrs Hillston. His Honour accepted Mrs Hillston’s evidence in this regard and rejected that of the appellant.
The appellant gave evidence that in mid August 1992 the deceased tore up her will in anger at Mrs Hillston. The appellant said that the deceased said to him at the time, ‘I want to leave you my whole estate because you are the only one who ever cared for me and I love you, darling’. There were no other witnesses to the alleged destruction. The appellant said that the deceased could not herself access the hiding place and so he got the will out for her. The trial judge rejected the appellant’s evidence, although he accepted the evidence that the deceased could not herself access the compartment. As we have mentioned above, the appellant now says that his evidence on this issue was incorrect because his memory deficit caused him to forget that the deceased did floor exercises.
His Honour rejected the appellant’s case of earlier deceit by Mrs Hillston and her husband in their relationship with the deceased, causing a breakdown in their relationship from about 1988 of which the argument in July 1992 and the anger were part. He relied in part on correspondence from the deceased to Mrs Hillston, including a letter in October 1992 couched in affectionate terms.
The deceased’s health deteriorated from April 1993, and Mrs Gudas and her family moved into the bottom floor at Eastbourne Avenue. The appellant’s evidence was that from June 1993 the deceased’s condition was terminal. In July 1993 she was admitted to hospital for five days.
The appellant gave evidence that in August 1993 the deceased told him she was going to make a new will because her assets had changed, some of the beneficiaries had died and others had their own money and no need. His Honour rejected this evidence. We pause to wonder why the deceased would say this to the appellant if, 12 months before, she had torn her will up in front of the appellant and said that she wanted him to have the whole of her estate.
On 30 November 1993 the appellant’s daughter, Tamara, and her boy friend found the appellant and the deceased in bed together when they arrived unexpectedly at Eastbourne Avenue. His Honour found that this was likely to have been a situation contrived by the appellant.
Mrs Marina Borovik gave evidence that on 1 December 1993 the deceased told her that she had destroyed her will. This evidence was rejected by his Honour.
The appellant gave evidence that on 26 March 1994 the deceased told him that she would leave him the unit and house in her new will. This evidence was rejected by his Honour.

On 10 April 1994 the deceased was admitted to hospital suffering from a heart condition. She was discharged home on 24 April 1994.
In June 1994 the deceased’s condition further deteriorated, and she died on 25 June 1994.
The appellant was responsible for the wording on her headstone which read:
Eveline Hillston Bar-Mordecai … A woman of valour, a dignified intelligent and inspired human being, a wonderful soul mate, a thoughtful and considerate partner, forever remembered by Jack Henry Hillston and Michael Bar-Mordecai.
The death certificate was signed by the appellant, and the registration form described the appellant’s relationship to the deceased as ‘Good friend’.
His Honour accepted the evidence of Dr Kuchar that in July 1993 the appellant would have realised that she was close to death, and accepted that, had she not left a will, she would then have made one. This circumstance reinforced his Honour’s conclusion that the 1989 will had not been revoked.
Einstein J then turned to summarise the evidence of each of the witnesses and made findings as to that evidence.
The first witness was Mrs Connell, a friend of the deceased. In particular, Mrs Connell recalled an occasion in October 1993 when the deceased demanded to know when the appellant was going to repay her the money he owed her. The deceased spoke forcefully and was agitated. His Honour accepted this evidence, describing it as ‘very significant’. Mrs Connell also recalled conversations with the deceased in which she intimated that she did not want to move from the Mount Street unit but the doctor wanted to. After the move to the Eastbourne Avenue property the deceased told Mrs Connell, on more than one occasion, that she did not know whether she would be better off without the doctor; that she was not happy in such a big house and was happier in her unit. The trial judge accepted Mrs Connell as a witness of truth.
One of the appellant’s patients, and a neighbour of the deceased, was a Mr Kodomichalos. His evidence was accepted. It had only marginal relevance except that he deposed as to the fondness the deceased had for her husband until the day he died.
Mrs Vilimovsky was also a patient of the appellant. She said that she had seen the appellant and the deceased walking hand in hand in Centennial Park in 1988. She also said that on one occasion the deceased said to her ‘This is our bedroom …’. His Honour said that he did not accept her evidence as reliable as she was, in his view, ‘far too close to the Plaintiff and anxious to assist in his case’.
Mr Alan Hillston lived in Greece, but stayed with the deceased in her home every 18 months or so. Between 1983 and 1990 he stayed at the deceased’s unit at Mount Street. On these occasions he never saw the appellant stay with the deceased overnight. In subsequent visits to the home at Eastbourne Avenue, he had never seen the appellant and the deceased show any sign of physical affection towards each other. Nor did either tell him that they were lovers or a de facto couple. Mr Hillston said that the larger of the bedrooms on the middle level at Eastbourne Avenue was occupied by the deceased. The appellant either slept upstairs or possibly in the bedroom across the hall from the deceased, but he was not certain. His Honour accepted Mr Hillston’s evidence notwithstanding the uncertainty as to the location of the appellant’s bedroom.
Mrs Jane Hillston, the mother of Alan and Alex Hillston and sister-in-law of the deceased, was an important witness. She stayed with the deceased at Eastbourne Avenue for 7 months from December 1991 to July 1992. She said that during this visit the deceased told her that she had left a fair share for Alexi (Alex) and Alan in her will. She also said that the appellant and the deceased retired for the night to separate bedrooms on the middle floor. At no time since her husband died did the deceased suggest to Mrs Hillston that she and the appellant were de facto partners. His Honour generally accepted Mrs Hillston’s evidence as reliable. Her evidence also corroborated that of Mrs Connell in respect of the deceased being angry and anxious with the appellant over money he owed her. Mrs Hillston denied seeing the deceased displaying any physical affection for the appellant, but believed that he was a good friend as well as her doctor.

The appellant submitted that his Honour failed to take account of Mrs Hillston’s evidence that she swore her affidavit without reading it. This was to be contrasted with the way in which his Honour dealt with the evidence of Mrs Borovik, see paras 75 and 114. The situations are however dissimilar. In the case of Mrs Borovik, the appellant himself prepared the affidavit for her signature and she agreed that it contained words, such as ‘demise’ and ‘engross’, which she did not understand. They were the words of the appellant and not her words. In the case of Mrs Hillston, her affidavit was prepared by a solicitor following the taking of a statement. In cross-examination Mrs Hillston did not concede that the contents of the affidavit were not hers. There were also other valid reasons which lead his Honour to reject Mrs Borovik’s evidence as unreliable. His Honour was entitled to generally accept the evidence of Mrs Hillston.
Mrs Gudas gave evidence that she first met the deceased in 1991 and moved into the ground floor at Eastbourne Avenue in April 1993. She said that the appellant and the deceased occupied a bedroom on the middle floor and on two or three occasions she went into the room and they were in bed together. She said that the deceased and the appellant were loving and affectionate together in the home, that they often held hands and that the appellant would sometimes hug the deceased or kiss her on the cheek. Mrs Gudas was working for the appellant when she gave evidence. His Honour rejected Mrs Gudas’s evidence of the occupation of the main bedroom on the first floor and that she had seen the appellant and the deceased in bed together. He also rejected her evidence that they ‘were loving towards one another’. His Honour formed the view that the witness was very close to the appellant and had tailored her evidence to support his case.
The deceased’s 87 year old cousin, Mr Solomon Axenfeld, gave evidence by video link. His Honour accepted him as a witness of truth. His evidence marginally assisted the respondents’ case and provided no corroboration for the appellant’s case.
The evidence of Ms Elsa Clut was important to the appellant’s case. She said that the deceased told her on many occasions that she loved the appellant, and that in 1991 she asked the deceased why they did not get married and the deceased replied that she was happy with the way it was. She said that on occasions she saw the appellant lying on the bed in the double bedroom on the middle level at Clovelly and the deceased sitting on the bed in her robe. She said that she saw them holding hands and sometimes the deceased kissed the appellant on the forehead. The deceased told her ‘This is our main room’, referring to the double bed in the bedroom on the middle level. She saw it as a normal relationship of husband and wife. His Honour generally rejected Ms Clut’s evidence, concluding:
I formed the view that Ms Clut was extremely close to Dr Bar-Mordecai and I do not accept her evidence as reliable, or as correctly reflecting the events which occurred. It is possible that over the years, she has come to believe some of the things which she said on oath but, in general, I would not accept the evidence of this witness. I base that view on her demeanor and on the extent to which she seemed overly keen and overly zealous to promote Dr Bar-Mordecai’s case. Also the evidence was so inconsistent with the evidence given of (sic) most of the other witnesses who expressed the view that the Deceased was reserved and not at all open, in any fashion in her relationship with, or dealings with, the Plaintiff that I do not accept that Ms Clut’s evidence could be relied upon.

Mrs Haralambopoulos and her husband were neighbours at Clovelly. Their evidence was accepted by the Court. It did not assist the appellant’s case in any material way.
Mrs Borovik was another witness important to the appellant’s case. She was the only witness who gave evidence corroborating the appellant on the revocation issue. She said that the deceased said to her:
A few months ago I destroyed my will and I require a new solicitor for my new will. I don’t want to use my previous solicitor as I feel awkward with him because he suspects that I’m having a de facto relationship with the doctor.
This evidence was not accepted, and his Honour gave a number of reasons why he did not find Mrs Borovik to be a reliable witness. These included her anxiety to assist the appellant in his case wherever possible and her preparedness to swear her affidavit without closely examining it; his Honour also relied on aspects of her evidence which he perceived as less than satisfactory. Einstein J found that she was apparently content to swear an affidavit placed before her by the appellant for signature, and his Honour was unable to assume that it contained her own recollections. Counsel for the respondents went further into why his Honour was correct to reject the reliability of the witness, and we will return to this later in these reasons.
Mr Kenneth John knew the deceased from December 1991 until her death. They became good friends and spent many hours together reading and going for drives in Centennial Park. The deceased never told Mr John of any relationship she may have been having with the appellant. Mr John had also been a patient of the appellant. His Honour generally accepted Mr John as a witness of truth. Again, Mr John’s evidence did not materially assist the case propounded by the appellant.
Mrs Grunberger lived next door to Eastbourne Avenue. His Honour accepted her evidence. She believed that the deceased and the appellant had a caring relationship and, although she had no way of knowing, would not have been surprised if it involved sexual relations.
Mr Lindsay Smith, who had been employed by the appellant to develop software for his practice, said that he was aware that the deceased and the appellant were great friends, lived in the same accommodation and had a great respect for one another. Although his Honour said that Mr Smith was and remained close to the appellant, he did not comment on the veracity of his evidence. It seems to us that his evidence did not greatly assist the appellant’s case.
Nor did the evidence of Mrs Miriam Jacob or, save as to one matter, the appellant’s accountant, Mr Bentwich, advance the appellant’s case to any great extent. The evidence of Mr Bentwich was essentially of what the appellant said to him, although it included that when the deceased showed him around the house she said ‘That’s our bedroom’. That had to be weighed with all the other evidence.
Mr Simon Schwartz is the appellant’s son-in-law. He gave evidence that in December 1993, prior to his marriage to Tamara, they went to the Eastbourne Avenue house after the Year 12 formal to show off Tamara’s gown. They entered unannounced and saw the deceased and the appellant in bed together. His Honour accepted Mr Schwartz’s evidence. The appellant’s daughter Tamara did not give evidence.

An important witness in the respondents’ case was Mr Alex Hillston. His Honour accepted his evidence as truthful. In recounting the evidence of the witness, his Honour said:
During Mr Hillston’s visit to Australia in February 1994, he observed that the Deceased and the Plaintiff retired to separate bedrooms at night, which rooms were located on the same floor of the house. During the same period, he observed the Deceased giving Dr Bar-Mordecai certain sums of money and the Deceased said to Mr Hillston, words to the effect: “I have provided to the doctor certain sums of money over the years for the surgery, for this place and the doctor’s medical software. He hasn’t paid much of it back”.
Mr Hillston’s evidence was that whilst he was staying in the house in 1993 and 1994, the Plaintiff and the Deceased were formal in the manner in which they addressed one another and he did not recall them kissing each other as a form of greeting or at all. He did recall the Plaintiff sometimes ruffling the Deceased’s hair.
Mr Hillston’s evidence was:
‘I do not recall seeing anything of a physical nature occurring between my aunt and Dr Bar-Mordecai which would have made me think there was anything other than a platonic relationship between them. At no time did my aunt or the Plaintiff ever suggest to me that they were de facto husband and wife or lovers and [I] did not hear them suggest any such relationship to anyone else’.
Mr Hillston was asked to assume that his mother had demanded of the Deceased to see her will and, on that assumption, was asked whether he had an opinion as to whether that sort of demand could have caused the Deceased to tear up her Will. His answer was that in his view, it would be totally out of character for such a matter to be a catalyst for the Deceased to want to tear up a Will.
Mr Hillston was asked what he recalled was the relationship between the Plaintiff and the Deceased and his answer was: “It is my opinion that Dr Bar-Mordecai was one of Eveline’s dearest friends”.
His Honour recorded that in late May 1994 Mr Hillston spoke to the deceased by telephone and asked for a loan of between $200,000 and $300,000. He said that the deceased said that if she died before the loan was repaid ‘you can consider this as an advance on what I’m leaving you in my Will. But then you will get less in my Will because of this loan’. His Honour observed that this could only be consistent with the existence of a will and, in particular, of the 1989 will.
Mr Hillston also gave evidence that when he was staying with the deceased at Eastbourne Avenue, he would go into her bedroom from time to time and she would be lying down. He would sit on the bed and talk. Sometimes the appellant would join them and also sit on the bed. His Honour accepted Mr Hillston’s evidence that he never saw the appellant and the deceased in bed together.
Mr Hillston said, and his Honour accepted, that he asked the appellant for a copy of the will about two weeks after the deceased died. The appellant agreed, but when it had not been provided by October 1994 Mr Hillston contacted the appellant and again asked for it. The appellant said, ‘I haven’t sent you a copy as I am consulting two solicitors regarding the interpretation of the Will. When I get their opinions about the will, then I’ll send you a copy with their opinions’.
His Honour then turned to the appellant’s evidence. He said that the appellant had mounted a case relying on very considerable indicia which, in any other case, may be regarded as strongly probative of the existence of a de facto relationship. He referred to the appellant’s evidence that he and the deceased had sex approximately four times per week throughout the whole period from when he moved into the Mount Street unit until the deceased’s death, save for one month when he left to live with Dr Ballin. His Honour rejected this evidence. Of it his Honour said:
His evidence was so greatly exaggerated that I infer that the truth on the issue would be harmful to the Plaintiff’s case.
His Honour added that the appellant was not only an unreliable witness, but untruthful. He said:
It does not seem to me probable or likely that the Plaintiff had intercourse with the Deceased more than possibly on a few occasions through the whole duration of the relationship.
His Honour referred to the evidence said to directly support the appellant’s case on the sexual relationship, viz. that of the appellant himself, Mr Schwartz, Mrs Gudas, Mr Bentwich, Ms Clut and the 1986 video. His Honour then said:
… the evidence satisfied me that Dr Bar-Mordecai, through the whole period that he was living in the same unit or house as the Deceased, had regular sex with other women. He was, of course, 37 years of age and Mrs Hillston was, of course, 72 years of age. Dr Bar-Mordecai’s age suggests a fundamental incompatibility, at least in terms of sex, with a woman aged 72 with severe health difficulties.
Whilst in an extremely rare case, one may accept that a very elderly woman with severe medical problems, could have some form of active sex relationship with a man half her age, I am satisfied that in this case, this did not occur. The Deceased herself states in the April/May 1992 video that she did not require regular sex. The extent that the Deceased ever had sexual intercourse with Dr Bar-Mordecai, my finding is that this would have occurred very occasionally and at a time when the motivation of the Plaintiff was solely for the purpose of being in a position to endeavour to represent that there was a sexual relationship and fabricating a depth to the relationship which was simply not there. It is likely to have occurred shortly before the video, to which I have referred.
and
The Deceased was a fragile elderly lady. She was content to live in the same house as the Plaintiff but did not regard herself as living in a husband/wife relationship with the Plaintiff. She regarded the Plaintiff as both her doctor and a person who had sought out her companionship, which she was entirely content to give. She was far too intelligent to permit the Plaintiff to take unwanted liberties with her without her complaining. She was lonely. She was, as I find, very well aware that the principal interest the Plaintiff had in her was in her assets. She was far too intelligent to have paid the amounts she did without appreciating that the Plaintiff stayed close to her so as to be able to continue to obtain loans and gifts. She was also a very good friend of the Plaintiff.
His Honour found that the appellant had assumed a position towards the deceased which involved ‘an ascendancy of influence over her and a dependence or trust on her part’.
Einstein J added:
This was a case in which Doctor Bar-Mordecai occupied, and assumed towards the Deceased, a position naturally involving an ascendancy of influence over her and a dependence or trust on her part. He was her medical practitioner. He was a strong character. He was some forty years younger than she.
At the time when Doctor Bar-Mordecai commenced his relationship with the Deceased, she was suffering under possibly the worst of adverse circumstances ever suffered in her life, namely a period in which her husband of some forty-odd years was in a totally unconscious state for over a year. During this period, the Deceased was vulnerable in the extreme to the unconscientious use of any special capacity or opportunity which might exist and be held by a person in a position of influence.
To my mind, the present is a classic example of a situation in which the Plaintiff, through his position as the Deceased’s medical practitioner, came to occupy a special relation of influence over the Deceased. Notwithstanding her intelligence and confidence in herself as exhibited to family and friends over the years, the deceased as she grew old and frail was peculiarly vulnerable to matters concerning her ill-health. The transactions which she entered into with the Plaintiff speak volumes in terms of the domination, influence and position of superiority which the Plaintiff came to have over the deceased.
His Honour said that the fact that the deceased may have permitted the appellant to have some sexual encounters with her did not transform the relationship into a de facto one. He found that the deceased never regarded the appellant as her de facto spouse in any sense and was ‘rather bemused from time to time at his overtures, content to let him experiment with her physically from time to time and content to live in the same house with him over an extended period of time’.
His Honour held that:
I am satisfied that the Plaintiff manoeuvred the Deceased into a situation where he was heavily indebted to her over a period of time. She was no match for his several methods of procuring gifts and loans from her. I find that, over a period of years, the Deceased became more and more agitated when the Plaintiff, having borrowed moneys from her promising to repay, simply failed to do so.
His Honour continued that the relationship may have been one of mutual respect but not as husband and wife. Rather it was an unusual mix of live-in doctor and patient and good friends with a measure of mother-son affection. The occasional sexual skirmishes were a ‘peripheral and dispensible’ aspect of the relationship and did not define the relationship or hold it together.
His Honour then listed 19 aspects of the evidence which he regarded as inconsistent with a de facto relationship. We do not repeat them here.
The trial judge then turned to the revocation issue, recording that once it was answered, it made the de facto issue irrelevant.
His Honour chronologically traced the way in which the appellant had put his case on the issue, and in particular, how it had changed over time. Besides finding that the appellant had lied on oath in saying that he saw the deceased tear up her 1989 will, his Honour referred to a number of factors, which he saw as compelling, to reject that evidence.
First, the evidence established that the deceased was not the type of person who would be likely to revoke a will in a fit of rage, or if she had revoked it, not to have made a new will.
Secondly, the appellant’s conduct after the death of the deceased (some of which we have already recounted) was quite inconsistent with his evidence that the will had been torn up in his presence some years before.
Thirdly, the appellant’s affidavit in support of his application for administration (sworn 23 December 1994) was quite inconsistent with the evidence.
Fourthly, the appellant said that he told counsel and his solicitors in late 1995 that the will had been torn up. None of the legal advisers were called to corroborate the appellant. The only contemporaneous document of relevance was a file note of Minter Ellison dated 30 January 1996 to the effect that the appellant had instructed them that the deceased had destroyed her will in February 1992 ‘when B-M at home with 2 broken legs after argument with Jane Hillston …’. The appellant’s car accident leading to a period at the Eastbourne Avenue property was in January 1992.

100 Fifthly, his Honour noted the affidavits of Mrs Borovik and the appellant, both sworn on 9 January 1997. Mrs Borovik said that the deceased told her that she had destroyed her will. The appellant’s affidavit did not depose that he was present when the deceased tore up her will. Rather his affidavit stated that the deceased told him, in July or August 1992, that she had destroyed her will.

101 His Honour noted that the very first time that the appellant deposed to the will being torn up by the deceased in his presence was in August 1997, some 3 years after the commencement of the proceedings and around 5 years from the alleged event. His Honour said that the appellant’s explanation of the delay in disclosing the situation to anyone was not believable, and that the appellant’s evidence of the reasons for not informing anyone, including his solicitors, of the tearing up of the will, had all the hallmarks of fabrication. This was especially true of the appellant’s evidence of a casual meeting with an unknown solicitor at Bondi Junction on the very day the deceased died. The appellant said that he told the unnamed solicitor of the destruction of the will and the solicitor told him not to say anything about it.

102 His Honour concluded:

I find that the fact that the Plaintiff took so many years to first assert that the 1989 will had been torn up in his presence is simply explicable by the fact that this assertion represented a monstrous untruth and an untruth issued at a time when the Plaintiff had become aware that, in all probability, no later will had ever been made by the Deceased, and that he stood to gain the whole of the Deceased’s estate on intestacy if he were able to prove that he was the Deceased’s de facto husband at the time of her death. All that stood between the Plaintiff and obtaining the whole of the Deceased’s estate as her de facto husband was the will of the Deceased in 1989.

103 His Honour went on to find that the appellant himself had destroyed or suppressed the 1989 will after the death of the deceased.

104 Einstein J also noted the lack of corroboration of the appellant’s account of the destruction of the 1989 will notwithstanding that, according to the appellant, his mother could have assisted his case. The appellant’s mother was not called. The trial judge also noted that many of the deceased’s letters to her relatives were inconsistent with the appellant’s allegation of the revocation of the will. His Honour concluded:

My finding is that the Plaintiff lied on this issue and that the will was not destroyed by the Deceased in the Plaintiff’s presence or ever by her whilst she lived but stood as her last testamentary instrument at the date of her death. My finding is that the Plaintiff has not discharged the onus of proving on the balance of probabilities that the will was revoked.

Was the will revoked?

105 Logically, the issue of whether the deceased revoked her 1989 will ought be considered before the de facto relationship issue. However, we accept that the relationship between the deceased and the appellant is relevant for the light it may throw on the evidence concerning revocation.

106 Section 17 of the Act provides for the manner of revocation of wills. Section 17(3)(b) refers to the ‘burning, tearing or destruction otherwise of the will by the testator … with the intention of revoking the will’.

107 On the issue of revocation two questions are involved. First, did the deceased revoke her 1989 will by tearing it up in 1992? Secondly, assuming a finding against the appellant’s case, was the will subsequently revoked by the deceased and no new will made?

108 Examination of the first question of revocation by tearing up the will in 1992 involves at least two inquiries. It is necessary to consider the evidence of the appellant and Mrs Borovik and the evidence in the respondents’ case, together with all other relevant material before the Court: this includes the May 1992 video and the deceased’s letters to relatives. It is also necessary to consider the history of the appellant’s allegation of the revocation of the will by the deceased from the time he first alleged it until the trial. This may provide some insight into the evidence material to the first inquiry.

109 In his affidavit sworn on 9 January 1997 the appellant deposed that the deceased told him in July 1992 (corrected in his oral evidence in chief to August 1992) that she had destroyed her will and would make him her sole beneficiary in a new will.

110 However, seven months later the appellant deposed to a quite different recollection in his affidavit sworn on 20 August 1997. In this affidavit the appellant claimed that in 1992 Mrs Jane Hillston and the deceased had an argument in his presence about the will of the deceased. Following on from the conversation between Mrs Jane Hillston and the deceased, the appellant said that in July 1992 the deceased said to him, ‘I will leave my estate to you, as you have been the only contributor to my welfare and benefit’. The appellant went on to say that a few weeks later, in late July 1992 (corrected in the oral evidence in chief to August 1992) the deceased tore up the will in front of him, saying, ‘I want to leave you my whole estate because you are the only one who has ever cared for me and I love you, darling’. Thus the appellant’s case was that the deceased tore up her will in anger following dispute with Mrs Hillston.

111 According to the appellant, the deceased reminded him a few days later that she had destroyed her will. Over the following years she reminded the appellant on ‘numerous occasions’, and said that she was going to make a new will with the appellant as executor and main beneficiary. His Honour noted the obvious inconsistency between the appellant’s affidavits. The story had changed and the reason was, so it seems to us, fairly obvious. The appellant saw a need to link the deceased’s altercation with Mrs Hillston with her destruction of the will.

112 In the appellant’s oral evidence he said that, at the request of the deceased he got the will out of the console, where it was concealed. He said that he did this ‘because I knew she couldn’t get it’. He described in some detail why this was so. He said that he then handed the will to the deceased and she, with some difficulty, tore it up, saying, ‘Doctor, you’re the only one who’s spent quality time with me. You are the only one that’s cared for me and I love you very, very much’. The appellant said that he placed the pieces in a plastic bag and threw it out.

113 While rejecting the appellant’s evidence of the deceased destroying her will in front of him in August 1992, Einstein J accepted that the deceased could not herself access the hiding place in the console. As we have indicated, in the appeal the appellant said that his evidence on this issue was wrong because of his memory deficit. He said from the bar table that he now recalled that he and the deceased did floor exercises together, and that the deceased got the will herself. We will return to this.

114 In discussing the issue of revocation his Honour noted that the appellant’s evidence was not corroborated. Indeed, the only corroborative evidence was that of Mrs Borovik. She said that in 1993 the deceased said to her, ‘A few months ago I destroyed my Will …’. His Honour rejected Mrs Borovik as a reliable witness, and rejected this specific evidence. A number of reasons were given, in particular that Mrs Borovik was apparently content to swear an affidavit prepared for her by the appellant and placed before her by the appellant for signature. Counsel for the respondents took us to the underlying evidence. In her affidavit the words ‘engross’ and ‘demise’ appear. In cross-examination Mrs Borovik thought that engross meant ‘exaggerated’ and did not know the meaning of demise. As to the former, she denied that the appellant had suggested the word although she later said that she could not remember if the appellant had suggested it. As to ‘demise’, she accepted that it was not her word but that of the appellant. There were sound grounds for his Honour’s conclusion that Mrs Borovik’s evidence was unreliable and for rejection of her evidence of the conversation about revocation, and his Honour was entitled to reject her evidence.

115 Also as to the corroborative evidence, his Honour referred to the appellant’s election not to call his mother to give evidence. The appellant had agreed in cross-examination that his mother was one of the people who he claimed had a conversation with the deceased about her destruction of the will, yet he consciously elected not to call her. The appellant’s grounds of appeal included that he was not made aware of the effect of Jones v Dunkel, and on the appeal he sought thus to explain away his election. We will return to the alleged failure to explain the effect of Jones v Dunkel, and for the present it is sufficient to say that we are satisfied that the appellant was well aware of the need to call corroborative evidence on critical issues, in particular on the issue of revocation of the will, and of the possible consequence of not doing so. It is plain that he chose not to call his mother to give evidence for reasons of his own.

116 The initial difficulty in accepting the appellant’s evidence of the revocation of the 1989 will, and the inconsistent 1997 affidavits, is compounded when regard is had to surrounding and subsequent events.

117 First, although the appellant linked the argument between the deceased and Mrs Jane Hillston about the will of the deceased with the destruction of the will, an argument which Mrs Hillston denied, the compelling evidence of the deceased’s attitude to her relatives is quite against dispute and anger occasioning the destruction of the will. The most obvious example of this is in the 1992 video of the appellant’s ‘interview’ with the deceased. Notwithstanding what was likely to have been the appellant’s attempt to have the deceased say something derogatory about her relatives, there was not one critical word said by her. Further, the letters of the deceased to Mrs Hillston and Mr Alex Hillston were couched in affectionate and non-critical terms. There were letters in evidence from the deceased to Mrs Hillston between November 1991 and February 1994, including one couched in very affectionate terms of 5 December 1992, only four months after the alleged revocation. There was also a letter from the deceased to ‘Alexi’ dated 12 October 1992. It was addressed to ‘my darling, unique nephew and friend’, and again couched in the most affectionate terms. This was only two months after the alleged tearing up of the will by the deceased.

118 Secondly, from the appellant’s own evidence the deceased acted after August 1992 in a manner only explicable if she had a current will. We have already referred to his evidence that the deceased told him she was going to make a new will because her assets had changed, some of the beneficiaries had died and others had their own money and no need. Einstein J rejected this evidence, but if accepted it could not readily stand with revocation of the 1989 will and an expressed desire that the appellant get the whole of the deceased’s estate.

119 Thirdly, the conversation between the deceased and Mr Alex Hillston in late May 1994 could only be consistent with the existence of a will under which Mr Hillston benefited significantly.

120 Fourthly, there is the conduct of the appellant himself from the date of the alleged revocation in 1992, and in particular after the death of the deceased.

121 On the very day of the death of the deceased the appellant says he met a solicitor in Bondi Junction quite by chance. The appellant casually struck up a conversation. He told the solicitor about the deceased tearing up her will in 1992. The solicitor, whose name he could not remember, told him not to say anything about it.

122 His Honour found this to be a fabrication. This was a conclusion well open to his Honour. Indeed, the evidence lacked any semblance of credibility. It was inherently incredible.

123 Only two weeks after the deceased’s death, Mr Alex Hillston was informed by the appellant, following his request, that the appellant would send Mr Hillston a copy of her will. Clayton Utz wrote to the appellant on 7 July 1994 noting some doubt about whether Mrs Hillston revoked her will and that the original of it could not be found. By October 1994 the appellant told Mr Alex Hillston that he had not sent him a copy of the will because he was consulting two solicitors about the interpretation of it. His Honour was entitled to find that the appellant said this to Mr Hillston. Why, if the will had been torn up before the appellant some two years earlier, would he have said these things to Mr Hillston? Why would he not have informed his solicitors immediately that the will had been torn up in front of him?

124 On 23 December 1994 the appellant swore an affidavit on the application for administration. He deposed to his belief that the deceased did not leave a will and to his searches for a will. Why did the affidavit not disclose the destruction of the 1989 will in his presence in August 1992?

125 In November 1995 the appellant verified his defence to the cross-claim. The defence alleged the presumption of revocation of the 1989 will because it could not be found. This is, as his Honour observed, quite different from the will being destroyed by the deceased in the appellant’s presence. Indeed, it is the antithesis of it.

126 The appellant gave evidence that he informed his legal advisers in late 1995 of the tearing up of the will. He says that he told Mr Hallen of counsel, as well as his solicitors. None of them was called to corroborate the appellant.

127 Of particular significance is a handwritten note of the appellant’s instructions made by Minter Ellison on 30 January 1996. It includes on page 2:

Mrs H Destroyed will Feb 1992 when B-M at home with 2 broken legs after argument with Jane Hillston in kitchen.

Again there is no mention of the appellant witnessing the destruction of the will. More than that, the date of alleged destruction, fixed by reference to the appellant’s accident in early 1992, belies destruction in August 1992.

128 On 9 January 1997 the appellant swore an affidavit in which he said that the deceased told him that she had destroyed her will in February 1992 and would make him the sole beneficiary in a new one. As mentioned earlier, this was quite different from the affidavit which the appellant later made on 20 August 1997 in which he said that the deceased tore up the will in his presence in August 1992.

129 The appellant’s case at trial was eventually that the deceased destroyed her will in front of him in August 1992. Yet he told no-one of it, save an unknown, unnamed solicitor whom he met casually on the street on the day of the death of the deceased. The first time that he deposed to this case is in an affidavit sworn on 20 August 1997, five years after the event and three years after the commencement of the proceedings in the Court. This case is inconsistent with his previous affidavits and conduct. It is also inconsistent with his own evidence of the deceased’s expressed intention in August 1993 to make a revised will.

130 The appellant asserted in the appeal, in order to explain why the deceased did not make a new will following the destruction of the 1989 will, that the deceased was aware that if she did not leave a will her estate would go to the appellant as her de facto spouse and that she ‘did not leave a last will and testament on purpose so that [the appellant] would remember her, and she would stay alive in his mind’. He asserted, ‘The Deceased wanted the Plaintiff to remember her - and by not leaving a will she, as a former solicitor foresaw that the Plaintiff would have to mount a legal case to verify his de facto status and she would therefore be on his mind for many years to come, to the exclusion of all other female partners’. We do not find this credible.

131 The appellant’s explanation to his Honour for the delay in putting forward the destruction of the will in front of him in August 1992 was that no-one would believe his story if he told it. His Honour rejected this, and found that the real explanation was that the allegation was a ‘monstrous untruth’ and that it was made up at a time when the appellant was in all probability aware that no later will had been made and that he stood to gain the whole of the deceased’s estate on intestacy if he was able to prove that he was the de facto husband of the deceased. His Honour gave further reasons, which he regarded as compelling, why he disbelieved the appellant’s evidence in relation to the tearing up of the will by the deceased. His Honour said that the evidence clearly established that the deceased was not the type of person who would be likely to revoke a will in a fit of anger or, if she revoked her will, would not have made a new one. The conduct attributed by the appellant to the deceased was out of character. To the contrary, the deceased had been shown to be fastidious in relation to her affairs. There was ample evidence to support his Honour’s findings about the deceased, including out of the appellant’s own mouth, notwithstanding his change of evidence with the benefit of hindsight.

132 In our opinion, Einstein J’s findings were well and truly open to his Honour. Indeed, we think that no other findings would be reasonably open to his Honour. The appellant’s evidence was incredible, riddled with critical inconsistencies and lacking in corroboration. It was just not believable.

133 His Honour went further and found, as a fact, that the appellant himself destroyed or suppressed the 1989 will after the death of the deceased. It may be that his Honour did not need to go this far, although we think the finding was also open to him. That is explained in what follows.

134 The finding that the 1989 will was not revoked by tearing it up in 1992 is not conclusive on the issue of revocation. The second question earlier identified remains, whether the will was subsequently revoked by the deceased and no new will made.

135 If a will is traced to the testator’s possession and not found after death, there is a rebuttable presumption that the testator destroyed it with the intention of revoking it. The 1989 will was uplifted by the deceased from her solicitor in September 1990, and it may be accepted that it was then kept hidden in the console. The console was in the Mount Street unit before the move to Eastbourne Avenue, and then at Eastbourne Avenue.

136 The strength of the presumption depends on the character of the testator’s custody of the will (Sugden v Lord St Leonards (1876) LR 1 P & D 154; McCauley v McCauley (1910) 10 CLR 434; Taylor v Waters (Powell J, Supreme Court, 19 June 1992, unreported)). Moreover, where the will makes a careful and complete disposition of the estate and there are no other circumstances pointing to probable destruction, the presumption has been held to be so slight as not to exist (Sugden v Lord St Leonards; Finch v Finch (1867) LR 1 P & D 371; see R Atherton, ‘The Dispensing Power and Missing Wills’ (1993) 67 ALJ 859 at 862 - 863).

137 Was there any room for the presumption to operate in this case? We think not. Leaving aside the appellant’s evidence as to the deceased’s actual revocation of the will by tearing it up in his presence, which was disbelieved, when one examines the circumstances under which the will was kept it was clearly not in the deceased’s exclusive possession. Both the deceased and the appellant had keys to the place where the will was kept in both the Mount Street unit and the Eastbourne Avenue property. No one else had access to the hiding place. After the deceased and the appellant moved to Eastbourne Avenue, the appellant said that the deceased was physically unable to access the will herself. On this evidence one might doubt whether it could be concluded that the will was in her possession. She knew where it was but was unable to gain access to it without the appellant getting it for her. On this evidence, accepted by his Honour, the only person who had physical access to the will was the appellant. The pre-condition for the operation of the presumption was therefore absent.

138 Moreover, his Honour found as a fact that the appellant himself destroyed or suppressed the will. This was a finding which was available to his Honour on an examination of the evidence and his conclusion as to the credibility of the appellant. The finding was a reasonable alternative conclusion open to his Honour which accounted for the non-production of the will following the death of the deceased.

139 In our opinion, the facts of the case leave no room for the operation of the presumption as to revocation. The onus of establishing the basis for the operation of the presumption was on the appellant. It was not discharged. Should the presumption be seen to have arisen, its weight would be so slight as to be rebutted.

140 The ultimate finding of Einstein J was that the will was not destroyed by the deceased in the presence of the appellant, or ever by her whilst she lived, but stood as her last testamentary instrument at her date of death. We agree. The evidence pointed inexorably to this conclusion.

Was there a de facto relationship?

141 Although the finding as to revocation will dispose of the appeal, we should still deal with the issue of whether the appellant and the deceased were de facto husband and wife within the meaning of the Act. It was an alternative basis for Einstein J’s decision, and in the circumstances of this case we should not pass over it. Further, as we have already indicated the relationship between the deceased and the appellant is relevant for the light it may throw on the evidence concerning revocation. For example, if the appellant’s evidence was wrongly disbelieved on the de facto issue, this might assist him in overcoming the unfavourable finding on the revocation of the will. The converse, of course, may also run, that is, if his evidence on the existence of the de facto relationship was properly rejected, why should he be believed on the revocation issue? We have taken into account what follows as to de facto relationship when coming to our conclusion as to revocation, and vice versa.

142 In his concluding remarks on the issue of a de facto relationship his Honour determined that no such relationship between the appellant and the deceased had been established, stating:

The Court’s conclusion is that there was no de facto relationship here proved. Rather what was proved was a very, very unusual situation in which a lady in the twilight years of her life permitted a doctor to act as her live-in doctor, the living-in quite often, seemingly, extending to activities which, although if occurring in many other cases, would presumably be regarded as there proving a de facto relationship, in this case did not achieve that result.

143 His Honour’s conclusion followed a lengthy and fairly detailed examination of the relevant evidence.

144 The Act contains definitions of ‘de facto husband’, ‘de facto wife’ and ‘de facto relationship’. The latter is a simple definition -- it means the relationship of a man and a woman living together as husband and wife on a bona fide domestic basis although not married to each other. The definition, of course, invites questions. What does ‘living together as husband and wife’ mean? What is a ‘bona fide domestic basis’?

145 In the context of the De Facto Relationships Act 1984, in Roy v Sturgeon (1986) 11 NSWLR 454 at 458 - 459 Powell J usefully enumerated some of the factors which might be considered in order to determine the existence of a de facto relationship. One of these factors is the existence of a sexual relationship. This is obviously a relevant factor under the Act.

146 Any relevant factor in this case has to be viewed in the context of his Honour’s finding that the appellant came to occupy a special relationship of influence over the deceased. His Honour found that the transactions which the deceased entered into with the appellant ‘speak volumes in terms of the domination, influence and position of superiority which the Plaintiff came to have over the deceased’.

147 We have already set out some of his Honour’s conclusions on the position of influence of the appellant over the deceased. As we have said, there was a challenge to the undue influence finding.

148 The deceased had undergone a long period of stress following her husband’s strokes, and the further stress occasioned by his death in August 1983. She was then 72 years old. Within weeks she had agreed to the appellant moving in with her, and according to the appellant a sexual relationship between the deceased and the appellant, her doctor, had come about. This of itself suggests vulnerability of which the appellant took advantage.

149 The gifts and advances began almost immediately. In October 1983 the deceased made the appellant a co-signatory on her bank account. In late 1983 she purchased the Clovelly Road property for $245,000, and the appellant then moved his surgery from a nearby property and established it in the property under a lease from the deceased. At about the same time the deceased gave the appellant $30,000 for the purchase of a medical records system.

150 In August 1985 the deceased gave the appellant $25,000 for the purchase of a new computer, and in December 1985 she gave him $20,000 for the purchase of another computer.

151 In February 1986 came the will under which the appellant was given a life estate in the Clovelly Road property with a right to purchase it for value. In November 1986 the deceased made the appellant a co-signatory on her Visa account, to a limit of $30,000. The appellant drew upon the card, to the extent of $4,000 to $6,000, when attending an overseas medical conference. The deceased paid the Visa accounts.

152 In October 1987 came the sale of the Clovelly Road property to the appellant. On the appellant’s evidence, the mortgage payments were $9,240 per annum. In the result, he was given the property in return for about $60,000. After the mortgage to the deceased was discharged, in July 1993, the appellant mortgaged the property to a bank to secure a $100,000 facility granted to his company.

153 In December 1987 came the will under which the appellant was given a life estate in the Mount Street unit with the right to purchase it for market value.

154 In December 1988 came the purchase of the Eastbourne Avenue property for $665,000, paid for by the deceased but with the appellant as a one-third tenant in common. According to the appellant, the renovations cost $102,000 and were paid for by himself and the deceased. There was other evidence suggesting that the deceased paid about $70,000. While the appellant made the mortgage payments to the financing bank, the deceased repaid him in annual lump sums. From the latter part of 1990 the rent from Eastbourne Avenue was paid into the appellant’s bank account.

155 In late 1989 the Clovelly Road surgery was renovated, according to the appellant funded by himself as to $34,000 and by the deceased as to $40,000.

156 In August 1989 came the 1989 will under which the appellant had a right to occupy the Mount Street unit for life, a 5 per cent interest in residue, and the right to acquire the Eastbourne Avenue property at market value.

157 According to the appellant, after the move to the Eastbourne Avenue property in February 1991 he paid all household expenses, the council and water rates, and for electricity, telephone and gas. Einstein J rejected this evidence, saying that it was not possible on the state of the evidence to reach clear findings on sharing of these expenses.

158 This was considerable munificence to the appellant, to which may be added the transfer to him of a Volvo car in 1993. The doctor-patient relationship, the commencement of the personal relationship in circumstances of vulnerability, and the timing and extent of the munificence provide a significant basis for his Honour’s conclusions.

159 The appellant’s challenge was essentially on the ground that there was evidence that the deceased was of an independent mind, with the perhaps inconsistent ground that her munificence to the appellant was the product of a loving relationship. There was evidence of independence of mind, recognised inter alia in his Honour’s observations that the deceased was well aware that the principal interest the appellant had in her was in her assets and that ‘She was far too intelligent to have paid the amounts she did without appreciating that [the appellant] stayed close to her so as to be able to continue to obtain loans and gifts’. But this is not necessarily incompatible with the unconscientious abuse of a position of influence. Even a person’s appreciation that a relationship has a mercenary element may not dispel the domination and influence enjoyed over that person, and an otherwise independent mind may come under the domination of a person who occupies a position of influence, particularly when (as here) there are circumstances of extreme vulnerability, with the relationship then being moulded by the domination and influence.

160 A reading of the evidence as a whole is compelling that the conclusions earlier set out and the findings in question were not only reasonably open to his Honour, but were all but mandated by the preponderance of the believable evidence. In our opinion, there are no grounds for disturbing his Honour’s findings on this issue.

161 Once the conclusion is accepted that the appellant manoeuvred himself into a special relationship of influence over the deceased in order to take unfair financial advantage of her, the usual indicia of a de facto relationship take on a different hue. And it should be emphasised that his Honour found that the appellant ‘unconscientiously abused his position of influence’ over the deceased. We can see no fault in this finding, which was open to his Honour on the evidence.

162 Central to the appellant’s case of the existence of a long standing de facto relationship was his evidence that he and the deceased had sexual relations approximately four times every week during the period from 1983 until her death, save for one month when the appellant moved in with Dr Ballin. This evidence was rejected by his Honour. His Honour was entitled to conclude that the appellant’s evidence was so grossly exaggerated, and unsupported outside the appellant’s own notes, that it was not credible. There were a host of factors which contributed to this conclusion, including their age disparity, the appellant’s relationships with other women, and the pervasive lack of credibility of the appellant’s evidence. His Honour saw the appellant’s evidence on this issue as both unreliable and untruthful.

163 His Honour’s careful analysis of all of the evidence tending to establish or disprove the sexual relationship brought him to the conclusion that there was little corroboration of the appellant’s case. Of the relevant witnesses whom his Honour accepted as credible, the evidence of most told against the existence of a de facto relationship, for example, Mrs Connell, Mr Alan Hillston, Mrs Jane Hillston, Mr John and Mr Alex Hillston. Of the other witnesses generally accepted by his Honour, the evidence of Mrs Grunberger that the deceased and the appellant had a caring relationship did not take matters very far. Mr Schwartz’s evidence included the surprise visit to Eastbourne Avenue finding the appellant and deceased in bed together. His Honour found that the visit was likely to have been contrived by the appellant. It does, however, provide some support for the appellant’s case. The evidence of Mr Smith, Ms Jacob and Mr Bentwich, as we have said, did not advance the appellant’s case much, but it and in particular the identification of the bedroom to Mr Bentwich must be weighed with all the other evidence.

164 There were the other witnesses who gave evidence supporting the appellant’s case of the existence of a de facto relationship: Mrs Vilimovsky, Mrs Gudas, Ms Clut and Mrs Borovik. As we have said, we do not see that the evidence of Mr and Mrs Haralambopoulos materially assisted the appellant’s case. Mrs Vilimovsky’s evidence was of walking hand in hand and a single conversation with the deceased wherein she said ‘this is our bedroom’. His Honour rejected this and we are unable to conclude that he was not entitled to do so. The evidence of Mrs Gudas included some direct evidence of joint occupation of the bedroom on the middle floor and seeing the deceased and the appellant in bed together on two or three occasions. She gave other evidence of mutual affection between the deceased and the appellant. His Honour rejected Mrs Gudas’s evidence, forming the view that she was very close to the appellant and had tailored her evidence to help his case. Again, we are not in a position to say that his Honour was not entitled to so find. We have already referred to his Honour’s rejection of the evidence of Mrs Borovik.

165 There remains the evidence of Ms Clut. His Honour acknowledged that her evidence was important to the appellant’s case. Ms Clut gave evidence supporting the appellant’s case that he and the deceased lived as husband and wife. His Honour generally rejected her evidence, concluding that it was not reliable. His conclusion was based principally on her demeanour and her seeming ‘overly keen and overly zealous to promote Dr Bar-Mordecai’s case’; in other words, his Honour saw Ms Clut’s evidence as partisan. His Honour also noted that her evidence was inconsistent with a body of other evidence of the reserved nature and the personality of the deceased. We are unable to conclude that his Honour was wrong to find that Ms Clut’s evidence was unreliable.

166 The appellant’s submissions made much of the so-called uninhabitable room (the description was the appellant’s). There were two bedrooms in the top level of Eastbourne Avenue and two on the middle level. The deceased occupied one of the bedrooms on the middle level. The other was the so-called uninhabitable room, and there was evidence (particularly that of Mrs Jane Hillston) on which it was open to find that the appellant occupied it. The appellant said in the appeal that this could not have been so because until 1993 it was a storage room and had no bed. So, he said, he must have been sharing the deceased’s bedroom.

167 However, quite apart from the logical flaw in the argument, the appellant’s evidence as to the room before Einstein J was not qualified as to time, being of a ‘virtually uninhabitable dressing cum bedroom … which had single bed accommodation’. His Honour accepted the evidence of Mrs Hillston, and despite what the appellant put to us about telephones we consider it was open to him to do so on this matter.

168 In terms of conceivably corroborative evidence of the de facto relationship his Honour was entitled to note the absence from the witness box of housekeepers, other than Mrs Gudas, and the members of the appellant’s family, particularly his daughter, Tamara. To some extent his Honour was left with what he could glean from the videos taken by the appellant, which he viewed.

169 As mentioned earlier, at the invitation of the parties we also viewed the videos. In our opinion, they provide little corroboration of the appellant’s evidence, or independent evidence of a continuous sexual relationship between partners to a de facto relationship.

170 The 1986 video may be seen to provide some evidence of an act or acts of sexual intercourse. This may have lead his Honour to his conclusion that the probabilities were that the appellant and the deceased had intercourse, although on no more than a few occasions during the whole period of their friendship. His Honour’s finding was as follows:

To the extent that the Deceased ever had sexual intercourse with Dr Bar-Mordecai, my finding is that this would have occurred very occasionally and at a time when the motivation of the Plaintiff was solely for the purpose of being in a position to endeavour to represent that there was a sexual relationship and fabricating a depth to the relationship which was simply not there. It is likely to have occurred shortly before the video, to which I have referred.

171 This was a finding which was reasonably open on the evidence and cannot, in our view, be disturbed. Further, his Honour’s conclusion that such sexual activity as may have occurred did not define the relationship, and that it was by no means ‘the thread that held their relationship together’, was available on the evidence. The sexual relations were, according to the judge, peripheral and dispensable.

172 There is no doubt that there was a close friendship, a friendship mixed with a doctor/patient relationship. The 1992 video evidenced such a friendship, but no more; its impact was to the contrary of a sexual or otherwise de facto relationship. There is also no doubt that the close friendship extended to joint financial enterprises of a kind. However, this does not, as his Honour makes plain, extend the relationship into the realm of a husband and wife relationship. This is especially so when one accepts, as we do, that the appellant deliberately and unconscientiously assumed a position of influence over the deceased for his own financial benefit and advantage.

173 But there was abundant evidence that the deceased did not regard the appellant as her de facto spouse, being credible evidence of the witnesses accepted by his Honour and of statements or conduct by the deceased herself.

174 Those statements include the 1992 video, in which questions by the appellant of the deceased about their relationship brought responses inconsistent with the de facto relationship claimed by the appellant. This brought the submissions from the appellant in the appeal that ‘the deceased lied about the de facto relationship and made it into a companionship’ and that other instances when the deceased’s statements or conduct were inconsistent with the de facto relationship were untruths by the deceased. Even assuming reticence to make public a de facto relationship, we do not think this was so. We think that the evidence that the deceased did not regard the appellant as her de facto spouse was entitled to considerable weight.

175 Einstein J had to evaluate the evidence of a number of witnesses, some of potential weight and some of little moment, and many of them conflicting in different ways; he had to do so against facts established beyond controversy or not reasonably open to challenge, and with regard to the probabilities; and he had the advantage of seeing and hearing the witnesses for such assistance as he found in his task. This was a classic exercise in finding primary facts and arriving at conclusions as to secondary facts. In our opinion, his Honour was fully entitled to find that the appellant’s evidence going to the existence of a de facto relationship was false, that his case for such a relationship should not be accepted, and that, particularly in the light of the position of influence assumed by the appellant over the deceased, there was not a de facto relationship between the appellant and the deceased within the meaning of the Act. Grounds for overturning that finding have not been established.

176 In connection with the existence of the de facto relationship, his Honour found that the appellant was ‘well aware of the … indicia taken into account by the Court in determining this question’. His Honour found that the appellant set out to establish such indicia with ‘such vigour and detail that ultimately I formed the view that the Plaintiff had spent many years seeking to build up just such a case’. The evidence amply justified that view. We do not think that anything in the consideration of the de facto relationship issue casts doubt on the ultimate finding as to revocation. On the contrary, the compelling reasons for regarding the appellant’s evidence of destruction of the 1989 will as made up, in order to take on intestacy, make the appellant’s evidence as to a de facto relationship the more unacceptable.

The appellant’s memory deficit

177 The appellant frequently invoked his memory deficit during the appeal. Indeed, it seems to us that it was utilised to explain evidence which appeared inconvenient or harmful to the appellant’s case. It was also used to suggest unfair treatment of him by the judge.

178 So far as we can ascertain, the only expert evidence before his Honour on the issue was a report of Dr Wayne Reid dated 30 March 1992. A report of Professor James Lance dated 25 November 1993 was marked for identification at the trial but never became part of the evidence. On the hearing of the appeal the appellant sought to tender Professor Lance’s report. On 7 December 1999 we ruled that the report should not be received into evidence. The report of Dr Reid was admitted into evidence only as against the third respondent, not as against the first and second respondents. It noted the appellant’s bad injury in a motor vehicle accident on 3 January 1992. One of the injuries sustained was ‘short term memory loss’. The report concluded that the appellant had suffered a specific memory disorder affecting his ability to retain new material. Reassessment was recommended in 6 months before making any prognosis for the future.

179 The report said nothing about any short term memory loss existing in 1997 or 1998. There was no expert evidence before the trial judge that the appellant was suffering from memory loss or deficit at the time of the trial or in the years leading up to it. Although the appellant said in his evidence that he had a ‘short term memory’ and attributed it to the motor vehicle accident, he did not in his evidence at the trial otherwise seek to explain lack of recollection of important events, or qualify recollection as possibly inaccurate, by reason of memory deficit, or otherwise suggest that memory deficit affected his evidence of those events. Indeed, on the crucial issue of the destruction of the will by the deceased in his presence, the appellant said that that was something that he had always recalled.

180 There can be no criticism of his Honour for not mentioning Dr Reid’s report in his judgment. It was unnecessary to do so and no-one, including the appellant, had suggested that it be dealt with.

181 We have already referred to two of the many matters which the appellant said in the appeal were affected by his memory deficit. They were that when he told his Honour that the 1992 video was taken without the knowledge of the deceased -- it was, so he said, a ‘candid camera’ -- this was incorrect, because he now remembered that she knew that it was being taken; and that he now said that the deceased did floor exercises and that she, the deceased, not he, got the will from its hiding place in the console. The appellant referred more generally in the appeal to his inability to recall matters when being cross-examined. He said that he did not disclose his memory deficit because it was unimportant and he did not want to jeopardise his medical practice; but in the appeal the appellant wanted to use it to seek to overturn findings made by his Honour on the evidence, including where his Honour had relied on the appellant’s own evidence.

182 We can act only on the evidence. However, even if it were appropriate to pay regard to what the appellant said in the appeal about his memory deficit, we think that its invocation in the appeal lacks substance. It became a standard reaction to a difficulty in the appellant’s evidence which, on more than one occasion, was shown on investigation to lack credibility. An example is the appellant’s statement to this Court that, because of his memory deficit, he did not take advantage of leave granted to lead oral evidence from Mr John, following the rejection of certain paragraphs of Mr John’s affidavit. A reading of the transcript of the trial shows that the appellant was reminded by his Honour of the rejection of the paragraphs immediately before Mr John entered the witness box, that the appellant said that he proposed to ‘try and cure’ the problems with the affidavit, and that he ask some questions of Mr John to that end but desisted when Mr John showed little recollection. There was plainly no operation of a memory deficit.

183 In our view the appellant’s claim of memory deficit had and has no real part to play in assessing the evidence given at the trial and his Honour’s findings on the evidence. There was no evidence that as at the dates of the trial or after the death of the deceased, the appellant suffered from any memory deficit. Dr Reid’s report of March 1992 provides no support for the appellant’s submission. It was not raised in the trial, and cannot be raised now. The suggestion of unfairness on the part of Einstein J is unfounded and is rejected.

Failure to explain the effect of Jones v Dunkel

184 Einstein J took into account the failure of the appellant to call evidence from a number of persons, a particular example being his mother, making his findings on the basis that the evidence of those persons would not have assisted the appellant. There was no error in his doing so. The appellant maintained, however, that his Honour failed properly to warn him of the effect of the so-called rule in Jones v Dunkel.

185 There is nothing in this. On 3 June 1998, during the trial, the following exchange took place between Einstein J and the appellant:

HIS HONOUR:
Q.       Doctor, the court can infer when a party does not call a material witness or a witness who may have been expected to give material evidence in relation to the issue that the party would not have been assisted in their case in calling that witness. Do you understand that?
…
A.       I can understand that but then again, the people that I am calling would ultimately be greatly distressed by being cross-examined.

186 Counsel also explained the effect of the principle on a number of occasions, and when it was raised the appellant often gave reasons why he did not intend to call various persons.

187 It is plain that, although at times the appellant answered that he did not understand, he clearly did. It is abundantly plain that he had his own reasons for not calling the persons in question. The appellant was well and truly on notice throughout the hearing of the importance of corroborative evidence and the effect it might have on his case, and of the inference properly available pursuant to the rule in Jones v Dunkel if he failed to call witnesses who would be expected to provide the evidence.

Revision of ex tempore reasons

188 His Honour delivered his reasons ex tempore. He started to give judgment on 16 June 1998, and did not complete the judgment until 18 June 1998. The text of the ex tempore judgment was revised by his Honour and an addendum was added, and the revised reasons were distributed on 4 September 1998. The addendum corrected an error of fact which his Honour stated did not affect his reasons.

189 The error of fact was in para 518 of the judgment. It dealt with the appellant’s relationship with women other than the deceased, and included -

There was the sexual relationship which occurred immediately upon the death of Irene Rowston with Louise Fischer. Louise Fischer was aged forty-four: [Transcript 786] There is the difficult to follow, on the evidence, purchase by the Plaintiff after the death of Irene Rowston, of a desk: [Transcript 774.19] There is the Plaintiff’s sensitivity in answering questions related to whether he had a sexual relationship with Louise Fischer. The relevance of that issue to the case is not to suggest that Louise Fischer had a relationship with the Plaintiff during the course of the Deceased’s life, but is the age of Louise Fischer and the circumstance in which the Plaintiff’s relationship with her was struck up immediately after the death of Irene Rowston, whom he alleges he never had a sexual relationship with, but kept a photograph of in his surgery and bought a desk as a memento.

190 The addendum was -

Following delivery of the ex tempore Judgement, the Court’s attention was drawn to the Plaintiff’s denial [at transcript 795] of the assertion that, following his request to purchase Ms Rowston’s desk as a memento or memoir of someone he really liked, [transcript pages 773 and 774], he had in fact purchased that desk. In the ex tempore Judgment [see paragraph 518], I referred to the difficult to follow, on the evidence, purchase by the Plaintiff after the death of Irene Rowston, of a desk, and to transcript page 774.19. I withdraw my finding of purchase of the desk. That the Plaintiff, who plainly as he conceded [transcript page 774] wrote seeking to purchase the desk as a memoir, did not in fact ultimately purchase the desk, would not and does not affect my reasons for judgment.

191 The appellant complained that the revised judgment greatly modified the judgment delivered ex tempore. He said that there were other revisions of the ex tempore reasons, namely -

(i) a finding that the appellant slept in the so-called uninhabitable room was deleted, leaving no finding as to which bedroom the appellant occupied; and
(ii) a finding that the appellant made no provisions for the deceased in his will was deleted.
As well, the appellant said that a statement that the appellant had an affair with Louise Fischer while the deceased was alive was corrected during the delivery of the ex tempore reasons at the instance of counsel for one of the respondents: the correction was because the affair was after the deceased died.

192 There was no evidence before us of the correction last mentioned. As to the finding in (ii), the reasons set out in full the terms of the appellant’s will.

193 It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.

194 In an extra curial publication (1997) 9 Judicial Officers’ Bulletin at 25 Gleeson CJ said:

A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.

See also Kirby J Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 at 229-30.

195 This extends to correction of errors of fact, within the constraints mentioned. The matter was well put by Danckwerts LJ in Bromley v Bromley [1965] P 111 at 116:

… the general principle must be that this court must accept as the authentic record of the judge’s judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant.
After all, an extemporary judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.

See also Lam v Beesley (1992) 7 WAR 88, Loughnan v Altman (1992) 111 ALR 445 and Wentworth v Rares (Court of Appeal, 19 November 1990, unreported).

196 We do not think that any revisions made by his Honour, by way of the addendum and as otherwise asserted by the appellant, were other than appropriate, permissible and within the principles discussed above. They cannot be seen as altering the substance of the reasons, and clearly made no difference to the result on the critical issues for determination by the Court.

Bias

197 The appellant made repeated assertions of actual bias on the part of Einstein J. The appellant’s attack on his Honour was virulent. The appellant sought to summarise his bias allegations in his final submissions in the appeal. He claimed that his Honour displayed bias against him in 38 different ways and in over 100 instances.

198 It is difficult to summarise the appellant’s case on bias, but it encompassed:

partiality for the respondents in assisting their case
deliberately making findings against the appellant in order to discredit him in the community
making distasteful references to the appellant which vilified him
knowing of the appellant’s memory loss but failing to allude to it in his judgment
making a finding that the appellant had acted in a deceitful fashion when secretly taking a video of the deceased, when it was not a secret video and the deceased was aware of it
failing to act fairly to the appellant as an unrepresented party, including in failing to explain the effect of the rule in Jones v Dunkel, and acting in this way knowingly, and deliberately
unfairly accusing the appellant of infidelity with Viola when his Honour was himself unfaithful
failing to proceed against the appellant for contempt, following the accusation of his Honour’s infidelity, because his Honour knew that to do so would expose his bias
making changes to his ex tempore judgment
failing to give leave to prosecute the respondents’ witnesses for perjury
pursuing a personal vendetta against the appellant

199 These are only some of the appellant’s allegations of bias against his Honour, but they sufficiently indicate the extent to which his case went. Some of the matters were the subject of separate grounds of appeal; some were not really bias claims at all. Perhaps the appellant’s approach to his claim of bias on the part of the judge may be encapsulated in an excerpt from his written submissions:

In view of the evidence presented to Einstein J about the Plaintiff’s and the deceased defacto relationship that spanned over a decade, one wonders how Einstein J with all his errors, fraud, lies, deceipt [sic] - thought that he could get away with such a judgment that perverted the course of justice.

200 We do not think it necessary to detail the appellant’s extravagant allegations by an extended treatment in these reasons. In our opinion, a fair reading of the transcript, and regard to matters such as the alleged memory deficit and the revision of the ex tempore reasons, elicits not a whiff of bias, actual or apprehended. His Honour’s behaviour, in the face of what the transcript reveals as appalling provocation on the part of the appellant (of which the allegation of infidelity was part), was restrained in the extreme. He showed no partiality for one side or the other. The appellant’s case on bias is without a shred of support.

201 Indeed, the transcript of the trial demonstrates that his Honour went to considerable lengths to ensure, so far as he could, that the appellant understood the proceedings and the course it took. This occurred from the very beginning of the hearing on 9 February 1998 and there are numerous illustrations to be found in the transcript.

202 Of importance is the appearance of Mr Hallen on behalf of the appellant on 10 June 1998. Upon Mr Hallen’s appearance his Honour explained in a precise but very complete fashion the course which the hearing had taken to that day. Among other things his Honour said:

Obviously Dr Bar-Mordecai, not being a lawyer, can be expected to have, at some time, some difficulty in following the procedures. I think it is fair to say that everyone in this case from day one has spent a great deal of time endeavouring to clarify and make clear to Dr Bar-Mordecai just what is happening at all stages. He has never complained that he does not understand or, if he has, we have always clarified immediately. However, there is no doubt that the progress of the case from day one, when it began in February, until now, in the 21st day, in two brackets, has been complicated, in the extreme, not the least because Dr Bar-Mordecai, having read affidavits and called evidence, elected to unread the affidavits and take the evidence out of play, as it were.

203 Mr Hallen said:

There was no, either express or implied, suggestion in what I said of any attempt not to ensure that Dr Bar-Mordecai understood what was going on.

204 His Honour then spent a great deal of time -- it encompasses some 18 or 19 pages of transcript -- explaining the course of the proceedings. There then followed an adjournment. Upon the matter resuming Mr Hallen sought to withdraw, saying:

I have asked Dr Bar-Mordecai whether he has understood what your Honour has indicated and he understands what the present state of play is.

205 While the appellant was under the disadvantage of any litigant in person in appearing on his own behalf for the vast majority of the trial, his Honour plainly did his best to ensure fairness to the appellant. There is not a tittle of material to suggest bias on the part of the judge, actual or apprehended, and we consider that, notwithstanding the sometimes outrageous conduct of the appellant, his Honour behaved in an exemplary fashion. Regrettably, it seems that the appellant’s failure in the proceedings lead him not only to the view that the judge was wrong, but also to the view that the judge was biased and even fraudulent. There is not the slightest foundation for this.

Alleged perjury by the respondents’ witnesses

206 The appellant maintained that a number of witnesses who gave evidence in the case for the respondents committed perjury. They include Mr Alan Hillston, Mr Alex Hillston, Mrs Connell, Mr Axenfeld and Mrs Jane Hillston. The appellant said that since (in his view) they told lies on oath, their evidence should be ignored by this Court.

207 His Honour examined the evidence of the witnesses mentioned above in some detail. For the most part he accepted the credibility of their evidence, acknowledging some discrepancies and shortcomings in their testimony. He had the task of evaluation of evidence which we have earlier described. His Honour had a very considerable advantage over us, and an examination of the transcript of their evidence and the material relevant to it does not lead us to doubt his Honour’s assessment of their evidence. We do not believe that any of the credit findings made by his Honour with respect to their evidence should be disturbed, nor for that matter with respect to the evidence of any other witness. That the appellant categorises evidence as ‘perjured’ establishes nothing. This element in the appellant’s case in the appeal is misconceived.

Renunciation of probate

208 In the judgment delivered on 14 August 1998 his Honour found that the appellant had stated his intention to renounce probate of the 1989 will in open court and, on the exceptional facts as found by his Honour, that this was probably effective as a renunciation. Notwithstanding, his Honour went on to consider the powers of the Court to pass over an executor, under the statutory powers in ss 74(c)(i) and 75(1)(a) of the Act and pursuant to its inherent jurisdiction and on the basis of the inherent jurisdiction and the statutory provisions his Honour rejected the appellant’s contention that he was the appropriate person entitled to probate.

209 The challenge to the finding of renunciation of probate received comparatively little attention from the appellant. Although underpinned by a separate ground of appeal, it was really articulated as part of the appellant’s case on bias, it being said that Einstein J had tricked the appellant into stating his intention to renounce probate and had ‘engineered’ the renunciation. A reading of the transcript gives no support for this. On the contrary, the stated intention was plainly an expression of the appellant’s genuine will. It may be added that following his Honour’s explanation of the course of the proceedings on 10 June 1998 to which we have earlier referred, the occasion when the appellant was represented by Mr Hallen, counsel for some of the respondents supplemented the explanation by stating that the transcript recorded that the appellant had renounced probate. The adjournment followed immediately, and after the adjournment Mr Hallen informed the Court that the appellant understood ‘what the present state of play is’.

210 In any event, the appellant was put aside as the appropriate person to have probate of the will of the deceased not because of renunciation, but on the basis of the statutory provisions and the inherent jurisdiction because he could not be relied on to administer the estate ‘in a due and proper way in the interests of the parties beneficially entitled thereto’; as well, it was noted that ‘the manifest hatred of many of the beneficiaries by [the appellant] would also make proper administration unlikely’. It was manifestly open to his Honour to arrive at these opinions, and any other opinions would have been all but perverse. His Honour’s reasoning on the issue is unexceptional and, in our view, correct.

Other issues raised in the submissions

211 Following the institution of the appeal the appellant filed a 600 page submission which addressed his Honour’s judgment in the most minute detail. His further written submissions on the appeal, filed prior to the hearing, exceeded 300 pages. During the hearing of the appeal the appellant handed up three further written submissions totalling 71 pages. On any assessment the written submissions were prolix. This would be of less concern were it not for the repetitious nature of a great deal of the material. Selective quoting of the evidence was heightened by the frequent reproduction of rejected evidence or evidence not called in the trial or received on appeal. The unnecessarily vituperative nature of much of the almost 1000 pages, added nothing to its substance.

212 Many of the frequently repeated submissions were manifestly untenable, and many were manifestly misconceived or lacking in any substance. To address every one of the matters purported to be raised in the submissions of the appellant (written and oral) would be well nigh impossible. It is also unnecessary, because while we have considered all that the appellant put in his submissions there is no need to discuss arguments which are hopeless or inconsequential to the result in the proceedings. In accord with the approach explained in Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 at 503 and Amadio Pty Ltd v Henderson (1998) 81 FLR 149 at 175, we have confined these reasons to those issues with which we understand the appellant has principally concerned himself and which we see as of some significance or consequence.

213 In our view the appeal should be dismissed with costs.

OoO

LAST UPDATED: 16/05/2000