Hill v Cronin (No 2)
[2022] VSC 328
•15 June 2022
| 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 2022 and 16 May 2022 in accordance with an agreed timetable.
Plaintiff’s recusal application
The plaintiff submits that I should recuse myself from hearing this proceeding because of the contents of [73]-[76] of my reasons for judgment in the constructive trust proceeding. In those paragraphs I stated as follows:
[73]Having carefully considered the evidence Colin gave to the Court, I have serious reservations about its reliability in respect of important and contentious matters. There are two fundamental problems.
[74]First, Colin candidly acknowledged that he has memory problems and that sometimes he could remember things, and sometimes he could not — whether from many years ago, or from more recent times. This accords with my general observations about Colin’s recollection of events which, at times, was inconsistent and vague. Despite frequent breaks in the course of giving evidence, several times his evidence was confused and contradictory. This is perhaps unsurprising given his advanced years and various health problems.
[75]Secondly, however, I accept the submission advanced on behalf of Mr Cronin that significant aspects of Colin’s evidence were self-serving and fashioned to further his perceived interests in this proceeding, rather than being a true account of events. This was demonstrated in a number of aspects of Colin’s evidence including those referred to below.
(a)Colin applied for a pension in 2005. In cross-examination, he was asked why he had left a section on the application form, titled ‘your partner’, blank, and why he had failed to declare all of his proprietary interests. After initially saying that Ann filled out the application, he went on to say that Ann altered the form without his knowledge. He then admitted that he could not remember the form at all.
(b)In one of his affidavits, Colin stated that all of the properties he and Ann owned were purchased using joint funds. However, in cross-examination, Colin initially asserted that he had contributed ‘the lot’ to the purchase of Tamboon. When pressed, he then said that he could not remember whether it was purchased with joint funds, before then agreeing that it had in fact been purchased with funds from a joint account to which both he and Ann had contributed. He then retreated to not remembering, before saying that it was possible that it had been purchased with funds from joint accounts to which they had both contributed.
(c)In cross-examination, Colin stated that he never knew that Yaralla Crescent was held in Ann’s name alone. He was taken to Ann’s 2002 will, which he agreed had been drafted at the same time as his 2002 will and after consultation between he and Ann. Ann’s 2002 will gifted Yaralla Crescent to her daughter and granddaughter. Asked again whether Ann’s 2002 will had been drafted in consultation with him, Colin then said that he could not recall. Colin asked for a break from giving evidence. When he resumed giving evidence, he said that he could not recall whether Yaralla Crescent was held solely by Ann.
(d)Colin gave evidence that Treetop was his primary residence since early 2005. In October 2005, Colin and Ann bought Tamboon. In cross-examination, it was put to him that, from at least 2012, Colin had lived at Tamboon and only visited at Treetop. He denied this, saying that he stayed at Tamboon only occasionally. After being taken to a number of documents recording his address as being at Tamboon, including his electoral records, Colin said that he used the property as a post box because he started off living there. When it was pointed out to him that he had purchased Treetop before Tamboon, Colin said that he did not remember.
(e)In cross-examination, Colin was taken to his and Ann’s tax returns for 2006. Neither return recorded a partner. Colin’s explanation for this was that his accountant could have altered his tax return against his instructions. This was the first time that this allegation had been made. It did not appear in either of Colin’s affidavits, which he adopted as his evidence in chief.
[76]In light of the above matters, I do not regard Colin as being a reliable witness. I am generally unwilling to accept his evidence in relation to contentious matters where it is not supported by documentary evidence or corroborated by other witnesses.
The plaintiff places particular emphasis on my statement in [75] that ‘significant aspects of Colin’s evidence were self-serving and fashioned to further his perceived interests in this proceeding, rather than being a true account of events’. He submits that this finding is one which would give rise to an apprehension of bias.
The plaintiff argues that, in determining his claims in this proceeding, it will be necessary for me to assess his future needs and his prospective financial circumstances. This will in turn require me to make an assessment about the credibility of his evidence about those matters, being matters to which he has deposed by affidavit. The plaintiff argues that, in this way, his credibility will again come under scrutiny and there is an apprehension, given my findings in the constructive trust proceeding, that I will take a similar view of his evidence in this proceeding to that which I took in determining that proceeding. Counsel for the plaintiff also pointed to a number of other aspects of the affidavits which have been filed by the parties which are said to establish competing narratives about which I will need to make a determination at trial.
Counsel for the plaintiff also submits that an issue in dispute is the plaintiff’s eligibility to make application for further provision, and in particular whether he is the spouse or domestic partner of the deceased, or a former spouse or domestic partner of the deceased.[2] In undertaking that task, the Court may have regard to any family or other relations between the deceased and the eligible person including the nature of the relationship. This will, in turn, require me to make a further assessment about the plaintiff’s credibility.
[2]See definition of ‘eligible person’ pursuant to s 90(a), (e) of the Administration and Probate Act.
Legal principles
In their submissions, the parties referred to the well-known statement of principle by the High Court in Livesey v New South Wales Bar Association:[3]
Necessity and the extraordinary case … make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.
[3](1983) 151 CLR 288 (‘Livesey’).
In Johnson v Johnson, the High Court elaborated on this test in stating that the hypothetical reasonable observer of a judge’s conduct is posited in order to emphasise:[4]
… that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
The High Court also stated that the reasonableness of any suggested apprehension of bias is to be considered ‘in the context of ordinary judicial practice’ in which the relevant rules and conventions are not ‘frozen in time’ and are developed to take account of the exigencies of modern litigation, including the need for more active case management.[5]
[4](2000) 201 CLR 488, [12], omitting citations.
[5]Ibid [13].
In Ebner v Official Trustee in Bankruptcy, the High Court formulated the ‘apprehension of bias principle’ as following:[6]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. …
[6](2000) 205 CLR 337, [6] (‘Ebner’).
After emphasising that the apprehension of bias principle is one of possibility rather than probability which ‘admits of the possibility of human frailty’, the High Court broke down the application of the principle into the following two steps:[7]
… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[7]Ibid [8].
The principles articulated in Livesey and Ebner were considered in British American Tobacco v Laurie.[8] Heydon, Kiefel and Bell JJ observed that:[9]
…. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
Later their Honours noted that the hypothetical observer is reasonable and understands that the judge to whom an application for recusal is made is a professional judge and that ‘whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial’.[10]
[8](2011) 242 CLR 283.
[9]Ibid [139], original emphasis.
[10]Ibid [145].
In Isbester v Knox City Council, the High Court emphasised that the question whether a fair minded lay observer might reasonably apprehend a lack of impartiality is a largely factual question to be considered in the legal, statutory and factual context in which the decision is made.[11] The hypothetical fair minded observer is taken to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision.[12]
[11](2015) 255 CLR 135, [20].
[12]Ibid [23].
The defendant’s submissions
The defendant’s submissions focussed upon the second step of analysis referred to in Ebner. It was contended that the plaintiff had failed to articulate any logical connection between the relevant paragraphs in the constructive trust judgment and his fear that the Court might deviate from the course of deciding this proceeding on its merits. It was submitted that the plaintiff’s complaint cannot simply be that I did not accept the plaintiff’s evidence in the constructive trust proceeding and that this creates an apprehension of bias in the current proceeding.
The defendant also submitted that the orders made in both proceedings made it clear that the evidence in one proceeding was to be considered evidence in the other. It was submitted that determinations in relation to evidence before the Court in both proceedings, if properly made, cannot form the basis of any apprehension of bias.
In relation to the second step set of analysis referred to in Ebner, it was submitted that in order for an apprehension of bias to arise, the Court must be satisfied that something about the material referred to, such as the language of the findings, or the findings themselves, are of a nature which would suggest to a fair minded lay observer that the Court will, in these proceedings, deviate from, or fail to consider the current proceeding on its legal and factual merits. It was submitted that the findings in the constructive trust judgment upon which the plaintiff now relies were soundly based on the evidence presented during the trial. Further, nothing in the language used in the findings indicates or could support an argument that a fair minded lay observer, when confronted with this material, would consider that I would decide the current proceeding on any consideration other than the merits of the case.
It was submitted that adverse findings made against a party, if properly made, may well form the basis of determinations made in subsequent proceedings considering the same factual matters and that there was nothing improper in that regard. Relevantly, no fair minded lay observer would consider this as a basis for apprehending bias.
The defendant also submitted that, until recently, the parties have at all times approached this and the constructive trust proceeding on the basis that they concerned interrelated matters with significantly overlapping issues. On the basis of that understanding, timetabling orders were made in both proceedings which had the effect of effectively staying this proceeding pending a decision in the constructive trust proceeding. It was in recognition of the interrelated nature of the two proceedings that the parties consented to and the Court made orders that evidence in one proceeding would be evidence in the other. It was also on that basis that the parties sought to have this proceeding brought back before the Court as presently constituted in circumstances where it had initially been listed before another judicial officer.[13] It was submitted that these steps were agreed in order to take advantage of the efficiencies which arise from the Court having to consider as one a factual and legal history articulated across two proceedings. The plaintiff consented to this course knowing that the evidence he would give in the constructive trust proceeding and the facts he urged the Court to find were completely inconsistent with the evidence sought to be advanced by the defendant. The Court would inevitably be required to make findings in which one set of facts would be found to be true and the other false.
[13]Prior to making the orders referred to in [5] above, the proceeding had been listed for directions before another judge.
As the plaintiff has been legally represented by experienced counsel at all stages, it should be inferred from the above matters that the plaintiff’s consent to have the two proceedings heard as interrelated matters was provided with full knowledge, based on legal advice, that the Court could make adverse findings against the plaintiff. In those circumstances, the plaintiff cannot now resile from the consent previously provided and complain about an apprehension of bias as the basis for a recusal, simply because he has failed to achieve a favourable outcome.
Consideration
Having identified my statements in [73]-[76] of my judgment in the constructive trust proceeding as being what it is said might lead me to decide this proceeding other than on its legal and factual merits, the controversy is whether the plaintiff has articulated a logical connection between that matter and the fear that I may deviate from the ‘true course of decision making’.[14]
[14]As described by Hayne J in Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [183].
Contrary to the defendant’s submissions, I consider that the plaintiff has articulated such a logical connection. The judgment in the constructive trust proceeding determined the plaintiff’s claims in that proceeding to finality. One basis upon which I resolved the factual controversies to finality was my finding that the plaintiff was not a reliable witness. That finding was, in turn, partly based upon my conclusion that significant aspects of his evidence ‘were self-serving and fashioned to further his perceived interests in this proceeding, rather than being a true account of events’. I identified five particular aspects of the plaintiff’s evidence which I considered demonstrated this conclusion. The defendant did not submit that this proceeding does not raise any issue about the plaintiff’s credibility. For the reasons advanced on behalf of the plaintiff, it is readily apparent that, if I proceeded to hear this matter to trial, I may be required to make an assessment about the plaintiff’s credibility in the course of making relevant findings of fact. Once that is recognised, the logical connection between my findings about the plaintiff’s credibility in the constructive trust proceeding and the fear that I may deviate from the course of deciding this proceeding on its merits becomes self-evident.
This is not a case involving an incautious remark made by a judge in the conduct of a hearing, or a finding made on an interlocutory basis. I have made an adverse finding about the plaintiff’s credibility at trial, having had the opportunity to consider all of the evidence. The fact that my finding is not expressed in colourful or adjectival terms is, in the circumstances of this case, immaterial. It is the final nature of the express adverse finding I reached about the plaintiff’s evidence being self-serving and fashioned to serve his own interests – as distinct from being a true account of events – which is decisive. Further, my conclusion was not reached in relation to peripheral or minor parts of the evidence given by the plaintiff; it concerned ‘significant aspects’ of his evidence.
In those circumstances, despite my professional instincts to discharge my duty and to proceed to hear this matter to trial, I consider that a fair minded lay observer might reasonably apprehend that I may ‘have a mind incapable of being altered by evidence or argument’[15] about the plaintiff’s credibility and reliability as a witness, being an issue likely to be relevant in the determination of this proceeding.
[15]As expressed by the Court of Appeal in Elliott v Lindholm [2020] VSCA 260, [57].
I reach this conclusion being mindful that, as stated by Mason J in Re JRL ex parte CJL, the ground of disqualification is a reasonable apprehension that the judicial officer will not decide a case impartially or without prejudice, not that he will decide the case adversely to one party.[16] His Honour continued:[17]
In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[16](1986) 161 CLR 342, 352.
[17]Ibid.
In relation to the matters referred to by the High Court in Johnson v Johnson which I have set out in [12] above, it is true that this proceeding and the constructive trust proceeding have been jointly case-managed in a manner consistent with modern case management principles and in a way designed to ensure the efficient conduct of litigation. That context informs the application of, but does not displace, the essential test for apprehended bias to which I have referred. As Heydon, Kiefel and Bell JJ noted in British American Tobacco v Laurie, the rule is concerned with the appearance of bias, not its actuality; ‘it is the perception of the hypothetical observer that provides the yardstick’.[18] As I have explained, given the nature of my findings in the constructive trust proceeding, a lay observer might reasonably apprehend that, having there come to a clear and final view about the credit of the plaintiff as a witness, that I may not be inclined to depart from that view in this proceeding. That analysis and conclusion is unmoved by the manner in which the proceedings have been case managed.[19]
[18]See [15] above.
[19]No issue of waiver was raised by the defendant in his submissions.
For these reasons, the appropriate course is for me to accede to the plaintiff’s application and recuse myself from further hearing this matter. The proceeding will be referred to the Trusts, Equity and Probate List for listing for trial before another judge.
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