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Re Horner

Re Horner

Case [2020] VSCA 85 9 April 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0001

In the matter of an Application by MARK JAMES HORNER

Applicant

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JUDGES:	TATE and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2020
DATE OF JUDGMENT:	9 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 85
JUDGMENT APPEALED FROM:	[2018] VSC 736 (McMillan J)

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ADMINISTRATION AND PROBATE – Application brought for advice or directions in relation to access to and disposal of ashes of deceased parents – Co-executors not named as parties – Whether judge erred in finding procedure under Order 54 Supreme Court (General Civil Procedure) Rules 2015 not appropriate – Whether judge erred in not giving applicant a fair hearing – Apprehended bias – Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997), Leeburn v Derndorfer (2004) 14 VR 100, Macedonian Orthodox Community ChurchSt Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, Tsaknis v Lilburne [2010] WASC 152, discussed – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
Mr M Horner in person by audio visual link

TATE JA:

Introduction and summary

Mark James Horner (‘Mark’) seeks access to the cremated ashes of his deceased parents.[1] Together with his two siblings, John Edward Horner (‘John’) and Jane Ethel Leopard (‘Jane’), he is an executor of the estate of his father, Edward James Horner. His father was the executor of the estate of his mother, Barbara Jean Horner. He brought proceedings under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules of Court’), ‘Administration of estates and execution of trusts’, for advice relating to the rights and duties of co-executors with respect to cremated ashes. He claims that Jane has refused him access to his parents’ ashes and has threatened to dispose of them in a manner contrary to his mother’s wishes. He did not join John or Jane to the proceeding but understood that the primary judge might do so if she considered that course necessary or desirable.
[1]I have used first names as a matter of convenience, given that many of the persons referred to have the same family name. No disrespect is intended.

The judge dismissed Mark’s application on the basis that the procedure under Order 54 was not appropriate because there were disputed issues of fact and the co-executors were not parties.[2] She invited Mark to file a brief written submission to see if the issues could be narrowed and to identify more clearly what advice was sought. She indicated that when that was done, she would ‘come back’ to Mark. Mark received no further communication from the judge until he received the judgment refusing to join John and Jane and dismissing his application.
[2]Application by Horner [2018] VSC 736 (‘Reasons’).

Mark seeks leave to appeal on the basis that he was denied procedural fairness and the judge erred in concluding that the…

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 Re Horner

Details

AGLC: In the matter of an Application by Mark James Horner Applicant [2020] VSCA 85
Case: [2020] VSCA 85
Decision Date: 9 April 2020

CaseChat Overview and Summary

The case of Re Horner involved an application brought by a person seeking advice or directions regarding access to and disposal of the ashes of their deceased parents. The application was brought under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015. The co-executors of the estate were not named as parties to the application. The court was required to determine whether the judge erred in finding that the procedure under Order 54 was not appropriate, and whether the judge erred in not giving the applicant a fair hearing.

The court considered the applicable legal principles and case law, including Meier v Bell, Leeburn v Derndorfer, and Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand. The court found that the judge did err in finding that the procedure under Order 54 was not appropriate, and that the applicant was not given a fair hearing. The court also found that there was no apprehended bias on the part of the judge.

The appeal was allowed and leave to appeal was granted. The orders of the court were set aside, and the matter was remitted to the court for further consideration in light of the findings of the appellate court. The applicant was given the opportunity to present their case in a fair and impartial manner, and the court was required to consider the appropriate procedure for dealing with the application.

Orders