Hill v Cronin (No 2) - [2022] VSC 328

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2018 00418

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the Estate of Ann Marie Hill (deceased)

COLIN WOODROFFE HILL	Plaintiff
v
ROBERT DESMOND CRONIN (who is sued in his capacity as Executor of the Will of Ann Marie Hill, deceased)	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 June 2022
CASE MAY BE CITED AS:	Hill v Cronin (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 328

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COURTS AND JUDGES – Application by plaintiff for recusal by judge – Judge made adverse findings as to plaintiff’s credibility in earlier related proceeding – Whether reasonable apprehension of bias – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Livesey v New South Wales Bar Association (1983) 151 CLR 288.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Aitken Partners
For the Defendant	Mr G Mukherji	Davies Elliott

HIS HONOUR:

The plaintiff was the domestic partner of Ann Marie Hill, who died on 1 November 2017, leaving a will dated 30 June 2016. The Will appoints the defendant and Kim Hutchinson, the deceased’s daughter, as joint executors. The inventory of assets and liabilities which has been prepared indicates that the estate has an estimated value of approximately $2.4 million.

The Will provides for most of the deceased’s estate to be distributed to Kim Hutchinson and her daughter Kate Hutchinson, the granddaughter of the deceased. Under the Will, the plaintiff is to receive $125,000.

On 19 July 2018, the plaintiff commenced this proceeding under Part IV of the Administration and Probate Act 1958, seeking an order that further provision for his proper maintenance and support be made out of the deceased’s estate.

The trial of this proceeding was deferred until a related proceeding between the same parties was heard and determined. In that proceeding the plaintiff (who is also the plaintiff in this proceeding) contended that a property registered in the name of the deceased was in fact held on constructive or resulting trust for him, by reason that the funds for the purchase of that property had been sourced from both the plaintiff and the deceased (the constructive trust proceeding). On 12 August 2021 I delivered my reasons for judgment in which I dismissed the plaintiff’s claims.[1]
[1]Hill v Cronin [2021] VSC 480.

On 8 February 2022, the Court made orders by consent that the proceeding be referred for a mention to establish pre-trial timetabling orders before me.

On 25 March 2022, the plaintiff made an oral application that I recuse myself from hearing this proceeding based on an apprehension of bias. The parties informed the Court that they were content for the Court to determine the application on the papers by reference to written submissions which were subsequently filed on 12 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hill v Cronin (No 2)

Details

AGLC: Hill v Cronin (No 2) [2022] VSC 328
Case: [2022] VSC 328
Decision Date: 15 June 2022

CaseChat Overview and Summary

The plaintiffs, Hill, sought to have the judge in their case recused due to a reasonable apprehension of bias, following adverse findings made against them in an earlier related proceeding. The matter was heard in the Federal Court of Australia. The primary issue the court needed to address was whether the judge's previous findings created a reasonable apprehension that the judge could not approach the case impartially.

The court examined the applicable legal principles, notably the criteria established in Ebner v Official Trustee in Bankruptcy and Livesey v New South Wales Bar Association, to determine if the apprehension of bias was reasonable. The court considered the specific facts of the earlier proceeding, the nature of the findings made, and whether those findings demonstrated an established attitude that could influence the judge's impartiality. After a thorough analysis, the court concluded that there was no reasonable apprehension of bias. The judge's previous findings, while adverse, did not reflect an established attitude that would prevent the judge from delivering a fair judgment in the current proceeding.

In light of the findings, the court dismissed the application for the judge's recusal. The case was allowed to proceed before the original judge.

Orders