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Bar-Mordecai v Rotman & Ors S131/2000 [ 2001] HCATrans 175  (4 May 2001)

Sydney No S131 of 2000

B e t w e e n -

MICHAEL JACOB BAR-MORDECAI

Applicant

and

SELMA ROTMAN

First Respondent

ALEXANDER HILLSTON

Second Respondent

ALLAN DAVID JAMES HILLSTON

Third Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MAY 2001, AT 12.01 PM

Copyright in the High Court of Australia

DR M.J. BAR-MORDECAI: Your Honours, I appear on my behalf and I am assisted by RABBI DR ISAAC SASSOON MORDECAI. I see leave to have Rabbi Dr Isaac Mordecai read this presentation on my behalf and I will answer questions, if so required.

GAUDRON J: Yes, thank you, Dr Mordecai. I will take the appearances and I will come back to that.

MR J.B. WHITTLE, SC: May it please the Court, I appear for the first respondent (instructed by Stewart Levitt & Company) and I appear with my learned friend, MR B.J. BURKE, for the second and third respondents. (instructed by Shaw MacDonald)

GAUDRON J: Now, Dr Mordecai, there was, I understand, some communication between you and the Deputy Registrar on 30 April. I take it nothing now turns on that? No.

DR BAR-MORDECAI: That was resolved because you were not there.

GAUDRON J: Yes, thank you, Dr Mordecai. Now, Mr Whittle, I take it you have no objection to the course proposed by Dr Mordecai?

MR WHITTLE: I have not.

GAUDRON J: Yes. Dr Mordecai, leave is granted, as requested.

DR BAR-MORDECAI: Thank you.

RABBI MORDECAI: Your Honours, the applicant's de facto relationship with the late Eveline Hillston is the central issue facing this Court, as it was before the Supreme Court of New South Wales, the Court of Appeal and the Medical Tribunal of New South Wales. Whereas the de facto relationship criterion in Roy v Sturgeon states. "that intercourse should have occurred between the parties" without making reference to the frequency of intercourse, Justice Einstein ruled that frequency was the only criterion, despite acknowledging that intercourse did take place.

The Appeal Court failed to address this core issue. Your Honours, the Medical Tribunal dealt with the same central issues as a consequence of the Supreme Court proceedings. Not only with the de facto issue already mentioned, but, for example, with the veracity of witnesses. Counsel for Jane Hillston presented the Medical Tribunal with a certificate stating that she had suffered from a confusional state, yet this same witness was relied upon by Justice Einstein as a witness of truth, despite her uncorroborated and confused testimony.

The Appeal Court exonerated Alexander and Allan Hillston, the second and third defendants, from perjury, stating that they had confused their affidavits and oral evidence. The defendant's evidence formed the basis for Justice Einstein's findings, as opposed to the applicant's 15 unconfused witnesses. Your Honours, the Health Care Complaints Commission withdrew its complaint before the Medical Tribunal that Dr Bar-Mordecai had lied in the Supreme Court proceedings about having had sexual intercourse with Eveline Hillston four times a week. The evidence before the Medical Tribunal therefore confirmed, as it was before the Supreme Court, not only that sexual intercourse did take place but that it was frequent.

Your Honours, each of the applicant's witnesses corroborated and went unchallenged in the matter of the sharing of the master bedroom by Dr Bar-Mordecai and Eveline Hillston over a 10-year period. This critical evidence bore out the physical aspect of the de facto relationship, a fact a also corroborated by the evidence of 60 witnesses before the Medical Tribunal. Your Honours, in Justice Einstein's extempore judgment Dr Bar-Mordecai was relegated to sleeping in the uninhabitable room, that is, without a bed, during Jane Hillston's visit, on her uncorroborated evidence.

In Justice Einstein's revised judgment, no mention is made of where Dr Bar-Mordecai slept at all. Is this because Jane Hillston's evidence was uncorroborated and in conflict with 10 of the applicant's unchallenged witnesses' evidence? Although the Appeal Court was alerted to this issue, it neglected to either address it, or to make a definitive finding as to which bedroom the applicant occupied. Justice Einstein and the Court of Appeal erred in not accepting the overwhelming evidence of the applicant's witnesses as to which bedroom the couple occupied.

Your Honours, the affidavit sworn by Peter Rowston alleging a sexual relationship between Dr Bar-Mordecai and Irene Rowston was read in the Supreme Court. Under cross-examination, Dr Bar-Mordecai denied the allegation and tendered a report by the Health Care Complaints Commission that upheld Dr Bar-Mordecai's evidence. Despite the subsequent withdrawal of the Peter Rowston affidavit by the first defendant, Justice Einstein found that Dr Bar-Mordecai had had sex with Irene Rowston on a wooden desk which had later been bought from Peter Rowston to consecrate the sex act.

When the applicant, several weeks later, alerted Justice Einstein to the fact that there was no defendant evidence to support his finding he replied that the evidence was difficult to follow and withdrew his judicial finding. This prejudicial finding in the extempore judgment, however, is surely damaging to the judicial office of a Supreme Court judge. The

Appeal Court failed in its responsibility to address Justice Einstein's difficulty in following the applicant's simple unopposed evidence. Your Honours, in Justice Einstein's revised judgment, paragraph 478, his finding was that Dr Bar-Mordecai spent $60,000 in a three-month period on Viola in about late 1993.

The evidence of the date quote by Justice Einstein was incorrect. This money was spent on Viola after Eveline Hillston's death and not as per Justice Einstein's finding of seven months prior to Eveline Hillston's death. The Court of Appeal failed to address this issue. Your Honours, in Justice Einstein's revised judgment, paragraphs 64 and 66, his finding was that Eveline Hillston was born on 21/12/1910 and that Selma Rotman was born in August 1910, and that they were sisters. His finding with respect to their dates of birth, four months apart, makes it impossible that they were sisters. This is certainly a confused finding.

Your Honours, in Justice Einstein's revised judgment, paragraph 425, he believes the evidence of Simon Schwarz who observed Eveline Hillston and the applicant in bed together in the bedroom at the rear of the house on the middle floor. Justice Einstein said, "I accept Mr Schwarz as a witness of truth". Indeed, he was a witness of truth as he was observing a regular happening of a de facto couple in bed together as was their custom over the 10 years. In the same revised judgment, however, Justice Einstein made a further finding that Dr Bar-Mordecai contrived to be found in bed with Eveline Hillston by Simon Schwarz and Tamara Bar-Mordecai. Justice Einstein ignored the corroborative evidence of the applicant's 10 witnesses which was contrary to his, Justice Einstein's contrived finding.

Furthermore, the evidence of the 20 other witnesses before the Medical Tribunal corroborated Simon Schwarz's evidence. Your Honours, in Justice Einstein's revised judgment, paragraph 290, his finding was that Jane Hillston denied having demanded to see Eveline Hillston's will, contrary to the applicant's evidence. By striking out Mr John's corroborative affidavit evidence to the contrary Justice Einstein did away with the corroborative evidence of the applicant's allegation of the argument between Eveline Hillston and her sister-in-law, Jane Hillston, which led to Eveline Hillston tearing her will.

Mr John, in the Medical Tribal, persisted in his evidence that Eveline Hillston asked Jane Hillston during the altercation, "Jane, what have you left me in your will?" Jane replied, "Nothing. It's all for my boys". Mr John's oral and affidavit evidence corroborated the evidence of Dr Bar-Mordecai that Jane Hillston had demanded to see Eveline Hillston's will of 1989 contrary to Justice Einstein's finding. Your Honours, Justice Einstein failed to refer in his revised judgment to the evidence of sympathy cards that were sent to the applicant by both the first and third defendants and several other close friends following the death of Eveline Hillston. Sympathy cards as exemplified by those sent and exhibited in the application book are only sent to close relatives: husbands, wives, de factos.

The Court of Appeal failed to comment on the sympathy cards received by the applicant and failed to censure the trial judge for his omission of such cogent evidence. In view of the above, the applicant seeks special leave to appeal to the High Court of Australia. The applicant states that, firstly, the findings of fact should be re-examined by the High Court of Australia in light of Justice Einstein's contrived false findings to the benefit of the respondents which were then subsequently sanctioned by the Court of Appeal, and, secondly, the credibility of the applicant was established by the Health Care Complaints Commission's withdrawal of the allegation after 33 days of litigation and the evidence of 60 witnesses that Dr Bar-Mordecai had lied in the Supreme Court proceedings about having had sexual intercourse with Eveline Hillston.

Your Honours, the High Court of Australia should consider the evidence given by all of the witnesses at both the Supreme Court and the Medical Tribunal which supported and corroborated the applicant's assertions that he had a de facto relationship with the late Eveline Hillston and that Eveline Hillston revoked her 1989 will. The Medical Tribunal proceedings were a consequence of Justice Einstein's findings in the Supreme Court and therefore the evidence from the Medical Tribunal hearing on the same issues must be considered as evidence relevant in these proceedings.

Your Honours, in reflecting on my present situation, I, the applicant, identify with the Biblical figure of Job who, like me, was patient, even when struck by the hand of God. I have lost my de facto, Eveline Hillston, our home, my surgery, my profession, and, in addition, have had my reputation destroyed by both the national and international press. However, also like Job, in my nakedness, I have the right to stand before you to indict my accusers, as Job finally arraigned God. I seek your indulgence and understanding in my having to represent myself but, standing here before you unlearned in legal finesse, I wish to uphold my integrity and as a citizen of this Commonwealth to exercise my right of redress. Thank you.

GAUDRON J: Thank you. Yes, now, Dr Bar-Mordecai, did you wish to add to that?

DR BAR-MORDECAI: No.

GAUDRON J: It seems to me, Dr Bar-Mordecai, that the critical question in all of this is the revocation of the will.

DR BAR-MORDECAI: No, your Honour, the critical point in all this is the de facto relationship because it sets the stage for the revocation. The history of it was that Eveline Hillston gave me during her lifetime over $1 million. She gave her relatives nothing, by comparison. She was my wife, my de facto wife. Had she intended to leave a will, she would have left a will. She was intelligent. The evidence from the Medical Tribunal that I could not recall was on 30 May 1994, two weeks beforehand, she had made an appointment with my solicitor to engross a new will. Your Honour, people would not do that if they had an old will and that was active and ready and operative.

She had taken the will from the other solicitor in order to revoke it. Three previous wills were left with the solicitors when she wanted them to be operational. People do not take wills from a solicitor to have it operative but they take it either to change it or annul it and she annulled it by tearing it. The issue really in this case is not the will, it is my credibility and my credibility has been in question. My credibility in the de facto relationship has been in question. We had to bring 60 witnesses to prove my credibility jut for the de facto issue.

The revocation, your Honour, was attested to and given supporting corroborative evidence by three other witness that I did not call to the Supreme Court but there was plenty of evidence, all-in-all, to establish my credibility by, as a consequence of the Supreme Court action that the Health Care Complaints Commission withdrew the allegation that I lied about my sexual intercourse and the fact of principle is that sexual intercourse did occur between us and that really is part of it. Today, that sexual intercourse is not even required in law to establish a de facto relationship and the fact that it did occur and the fact that Justice Einstein knew about the development of the law and still ignored it.

The frequency of sexual intercourse was not just in my medical records on Eveline Hillston, it was in her diary that the Health Commission had examined by forensic examiners, document examiners. So, there was no way that anything was underhand or anything was below the belt or anything was conspired or lied to. It was the fact that Justice Einstein refused to recognise the de facto relationship. And, you can only recognise - if you recognise the de facto relationship, as the Appeal Court said - then you can only have that as a matrix to looking at the revocation.

GAUDRON J: Yes, thank you, Dr Mordecai. The Court will adjourn, briefly, to consider what course it will take in this matter.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.24 PM:

GAUDRON J: Yes, we need not trouble you, Mr Whittle.

MR WHITTLE: May it please the Court.

GAUDRON J: The applicant seeks special leave to appeal to challenge factual findings made by the trial judge. Those findings were, as the Court of Appeal held, open on the evidence before the trial judge. That was the only evidence upon which he was entitled to decide the case, so, too, it was the only evidence upon which the Court of Appeal could act. Indeed, it is the only evidence upon which this Court can act. That being so, the proposed appeal enjoys no prospect of success and the application for special leave is refused, with costs.

MR WHITTLE: May it please the Court.

AT 12.25 PM THE MATTER WAS CONCLUDED