Bar-Mordecai v Rotman; Bar-Mordecai v Hillston - [2005] NSWCA 71

NEW SOUTH WALES COURT OF APPEAL

CITATION: BAR-MORDECAI v ROTMAN; BAR-MORDECAI v HILLSTON [2005] NSWCA 71

FILE NUMBER(S):
40568/98
40225/03

HEARING DATE(S): 4 March 2005

JUDGMENT DATE: 04/03/2005

PARTIES:
Michael Jacob BAR-MORDECAI v Liviu ROTMAN as the ADMINISTRATOR OF ESTATE OF Slema ROTMAN
Michael Jacob BAR-MORDECAI v Allan HILLSTON

JUDGMENT OF: Mason P Giles JA Tobias JA

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Applicant: In person
Opponents: J B Whittle SC/ B Burke (Hillston)
S A Levitt (Sol) (Rotman)

SOLICITORS:
Applicant: -
Opponents: Shaw McDonald (Hillston)
Levitt Robinson (Rotman)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to reopen appeals refused.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40568/98
CA 40225/03
MASON P
GILES JA
TOBIAS JA
Friday 4 March 2005

Michael Jacob BAR-MORDECAI v Liviu ROTMAN as the ADMINISTRATOR OF THE ESTATE OF SLEMA ROTMAN

Michael Jacob BAR-MORDECAI v Allan HILLSTON

JUDGMENT

MASON P: I will deal first with the application in 40568 of 1998. By notice of motion filed on 20 January 2005 supported by affidavit, the claimant seeks leave to reopen the appeal in certain probate proceedings for the purpose of making new orders. The notice of motion then sets out numerous orders touching the administration of the estate in the reopened proceedings.
The detailed history of earlier litigation touching the estate of the late Evelyn Hillston, who died on 25 June 1994, is set out in the judgment of the Court of Appeal given on 17 March 2004 (see Bar-Mordecai v Hillston [2003] NSWCA 65). I shall refer to this as the first judgment in the equity appeal.
This particular motion is filed in relation to probate litigation that first came to the Court of Appeal in 1998. In the proceedings from which that appeal came, the claimant sought a grant of letters of administration on intestacy as the de facto husband of the deceased at the time of her death. He claimed that her 1998 will appointing him executor and trustee but leaving him only a portion of the estate had been revoked by the deceased.
Einstein J held that the will had not been revoked but that it had been destroyed or suppressed by the claimant after the death of the deceased. His Honour also held that the claimant had renounced probate. The judge appointed Mr Allan Hillston as administrator with the will annexed.
Letters of administration were granted to Mr Hillston because the claimant had renounced probate. Mr Hillston had the greater interest in the estate under the will. The claimant’s misconduct in suppressing the will would have disqualified him from a grant of administration in any event. In these circumstances the issue of a grant of letters of administration to the claimant on the basis that he was the deceased’s de facto widower did not arise. Nevertheless there were findings on this matter adverse to the claimant that were part and parcel of the trial judge’s assessment of the issues touching credibility and revocation.
An appeal to this Court was dismissed (Bar-Mordecai v Rotman [2000] NSWCA 123). Those orders were entered on 18 May 2000. A motion filed by the claimant seeking leave to reopen that appeal was itself dismissed with costs on 25 March 2003 (see Bar-Mordecai v Rotman & Ors [2003] NSWCA 53. The Court said at par 5 of its reasons (citations omitted):
Judgment in this Court was given on 16 May 2000 and entered on 18 May 2000. A principle of general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived. Such exceptions as there are to this rule would not permit this Court to set aside its former order. No grounds are shown for doing so. In fact the applicant sought special leave to appeal to the High Court from this Court’s decision. That application was refused with costs on 4 May 2001.
The present motion is a further attempt to reopen that appeal. It is vexatious and must be refused summarily. The statement in paragraph 5 of the earlier judgment of the Court of Appeal is equally applicable. The grounds attempt to re-agitate issues finally decided long ago. Furthermore, none of the evidence seems to be fresh, but it would not matter if it were because the appellate processes in this Court are over. There is also a plethora of baseless, often scandalous, allegations of judicial bias. Other grounds seem to proceed on the basis that this Court can entertain an appeal from its own decision.
The only matter deserving limited attention is that which appears to be a driving element of this application. The claimant contends that there is an inconsistency or incompatibility between the decision of the Court of Appeal in its first judgment in the equity appeal and the decision of Einstein J in the probate proceedings that stands in consequence of the dismissal of the appeal from that judgment.
The evidence in the probate and equity proceedings was different, although there was an overlap. Some witnesses were called in one proceeding who were not called in the other. The claimant had contended in the probate proceedings that a de facto relationship existed at the date of death. There were indeed findings on this issue adverse to the claimant in the probate proceedings. Whether those findings were dispositive such as to constitute an issue estoppel is an interesting question, but it was not a matter raised in the equity proceedings. Both before Bryson J and in this Court, both parties abjured any reliance on issue estoppel. Had there been an issue estoppel arising out of the probate proceedings, then the claimant would not have been permitted to agitate the de facto issue in the equity or family provision proceedings, at least as at the date of the deceased’s death. What is also clear is that this Court has no power to permit the reopening of the probate proceedings simply because of different findings on the de facto relationship issue in the equity proceedings and equity appeal.
As I have observed, there was an overlap of the evidence on this issue in both proceedings, but the evidence including the cross-examination was certainly far from identical. The fact that one court comes to a conclusion on an issue based on the evidence before it whereas another court on similar but far from identical evidence comes to a different conclusion has never before been and is not now a legitimate basis upon which the finding of one court can be reopened and set aside, and the finding of the other court substituted therefore. Yet this is the thrust of the claimant’s motion. It is misconceived.
The claimant repeated in this context his previously ventilated allegations that members of the Hillston family committed fraud, thereby procuring judgment in their favour. This allegation is not made out by repetition of submissions made at the trial and on appeal, that the evidence of witnesses adverse to the claimant’s interest was fraudulent, and it is unsupported by the evidence. Furthermore, this is not a matter apt to be raised in a motion to reopen an appeal.
The motion must therefore be dismissed with costs. In the circumstances indicated above, those costs should be paid by the claimant on an indemnity basis.
To the extent that it is necessary for this Court to grant leave pursuant to s84(1) of the Supreme Court Act in the light of the orders recently made by Patton AJ declaring the claimant vexatious, I would grant such leave. I would do so not because I think that this application has any merit but because I do not want the finality of this matter to be put at risk in any way by any appellate challenge that the claimant may raise against the vexatious litigant order.
Section 84(1) of the Supreme Court Act and the law of contempt that applies with respect to repeated baseless invocation of court process will I trust provide an adequate sanction to ensure that this is the last time that this Court is troubled with groundless motions relating to the probate proceedings.
In Court of Appeal proceedings 40225 of 2003, by notices of motion filed on 27 and 28 January 2005 supported by affidavits, the claimant seeks an order that leave be granted to reopen the appeal for the purpose of making new orders with a plethora of consequential orders touching the proceedings and the estate of the late Evelyn Hillston. Some of the orders also seek to displace orders in this Court and the Supreme Court made in the probate proceedings involving the estate of the deceased.
The application is filed in a context where the orders under challenge were made after a very full hearing in this Court, were entered on the claimant’s application and have been challenged unsuccessfully in the High Court of Australia. The claimant’s application for special leave was refused yesterday. I do not accept the submission that the entered order fails to address the surgery portion of the equity proceedings.
The grounds for reopening raised in the documents filed by the claimant and developed in his oral submissions amount to no more than a vexatious and at times scandalous re-agitation of issues disposed of earlier in the main judgment of 17 March 2004 and the further judgment of 21 December 2004. The allegations that the judgment in the equity appeal was the product of fraud is not made out by repetition of submissions made at the trial and on appeal that the evidence of witnesses adverse to the claimant’s interest was fraudulent. It is unsupported by evidence. Furthermore, it is not a matter apt to be raised in a motion to reopen.
If there is any power to reopen in the circumstances, the leave sought should be refused. Nothing suggests any ground for invoking the slip rule.
To the extent that it is necessary for this Court to grant leave pursuant to s84(1) of the Supreme Court Act in the light of the orders recently made by Patton AJ declaring the claimant vexatious, I would grant leave. as indicated in the earlier matter, I would do so not because I think that this application has any merit but because I do not want the finality of this matter to be put at risk in any way by any appellate challenge the claimant may raise against the vexatious litigant order.
The application to reopen should therefore be refused with indemnity costs.
The respondent has provided draft short minutes of order giving effect to the Court’s reasons of 21 December 2004. Some typographical corrections have been made this afternoon and order 1(c) has had added to it the words “This judgment is to take effect on 28 February 2003” that being a matter expressed in the reasons of the Court on 21 December 2004. The appellant’s objections to the form of the orders are detailed in a notice filed by him on 28 February 2005 and his submissions today. They represent no more than another attempt to re-agitate the merits of the issues underlying the appeal.
The orders proposed by the respondent should be made, are therefore made and are to be entered forthwith.
GILES JA: In both matters I agree with the President.
TOBIAS JA: I also agree with the President in relation to both matters.
WHITTLE: Your Honour, I did have some draft orders but I won’t hand them up. They were just correcting those matters that your Honour mentioned. Your Honour the president did indicate when you delivered judgment, at the end of your judgment I think on 21 December, that there should be a stay from the time of making final orders for 21 days.
MASON P: Yes.
WHITTLE: As I understand it, effectively that’s going to be from today, given the fact that effectively the Court has just made final orders.
MASON P: Is there a point in that given that the - that was intended to protect rights to go to the High Court.
WHITTLE: Yes, I think that’s right.
MASON P: Those rights have been exercised.
WHITTLE: That’s one of the reasons I wanted to make the point, whether there’s any utility in that stay any longer being in place.
MASON P: I suppose it could be said that the final orders that were previously made were taken on appeal to the High Court unsuccessfully. What has been made today are some further final orders in relation to ancillary aspects of the proceedings. Do you therefore seek a stay or suggest that we should make a stay?
WHITTLE: I thought it was proper to raise it with your Honour. I don’t think there should be a stay obviously because it’s not in my client’s interests, but given the fact that your Honour had said it on the 21st I thought it should be clarified.
MASON P: Thank you for drawing it to our attention. We are disposed to order that the orders pronounced today are stayed in their operation for twenty one days. I should indicate that the purpose of that is to protect whatever possible appellate rights Mr Bar-Mordecai has in relation to what has happened today.
CLAIMANT: Well there is a current application in the High Court irrespective of those two applications that have been refused.
MASON P: You’ll be able to take that matter up with the High Court.

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LAST UPDATED: 16/03/2005