Olsen v Olsen

[2019] NSWCA 278

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Olsen v Olsen & Ors [2019] NSWCA 278
Hearing dates:	1 October 2019
Decision date:	19 November 2019
Before:	Meagher JA at [1]; White JA at [2]; Emmett AJA at [85]
Decision:	Appeal dismissed with costs.
Catchwords:	APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias   SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims
Legislation Cited:	Succession Act 2006 (NSW), ss 8, 59, 60, 91
Cases Cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Friend v Brien [2014] NSWSC 613 Gorton v Parks (1989) 17 NSWLR 1 House v The King (1936) 55 CLR 499; [1936] HCA 40 In re Sinnott (1948) VLR 279 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 Mayfield v Lloyd-Williams [2004] NSWSC 419 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Olsen v Olsen [2019] NSWSC 217 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Revell v Revell [2016] NSWSC 947 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Squire v Squire [2019] NSWCA 90 Steinmetz v Shannon [2018] NSWSC 1090 Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 Stott v Cook [1960] 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44
Category:	Principal judgment
Parties:	Craig Olsen (Appellant) Dean Richard Olsen (First Respondent) Micheline Isabelle Olsen (Second Respondent) Faye Beverley Olsen (Third Respondent)
Representation:	Counsel: I Coleman SC with L Clarke (Appellant) M Condon SC with D Robertson and Q Noakhtar (Respondents)   Solicitors: Next Legal & Conveyancing (Appellant) Robertson Saxton Osborne (Respondents)
File Number(s):	2019/97536
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 217 Date of Decision: 15 March 2019 Before: Pembroke J File Number(s): 2017/155788

HEADNOTE

[This headnote is not to be read as part of the decision]

The appellant challenged a decision of a judge of the Equity Division dismissing his summons seeking an order for family provision under s 59 of the Succession Act 2006 (NSW) out of the estate of his late father (“the deceased”).

When the appellant was about nine months old the deceased separated from his wife, the appellant’s mother, and then subsequently remarried and had three children with his second wife. By his will the deceased made no provision for the appellant, leaving to his widow the whole of his estate worth $379,816.97. Other property of which the deceased had been a joint owner was capable of being designated as notional estate.

At a pre-trial directions hearing, the primary judge indicated that he held preliminary concerns relating to the volume and breadth of the appellant’s evidence and expressed critical sentiments regarding the appellant’s case – it being a claim for family provision by an adult son. The primary judge also expressed a view that there would be no question that the position of the three children of the deceased and his second wife would be relevant to the appellant’s claim, a position to which he adhered at trial.

The primary judge dismissed the summons at the conclusion of the hearing. In his reasons, the primary judge repeated the sentiments expressed at the pre-trial hearing, namely that “absent special circumstances, there is no legal or legal or moral justification for an able-bodied adult son clinging to a sense of entitlement that he will necessarily benefit from his parent’s estate”.

The principal arguments raised on appeal were that the primary judge’s decision was:

1. affected by actual or apprehended bias in that he (i) was unable to be swayed from the fixed opinion alleged, namely that an able-bodied adult son should not be entitled to a family provision order against the estate of one of his parents, (ii) adhered to the view that the position of the deceased’s other children would be relevant to the appellant’s claim, and (iii) was unduly critical of the appellant’s legal representatives; and

2. in any event affected by error in that the primary judge applied a principle of giving paramountcy to the freedom of testamentary disposition in determining whether an order of provision should be made.

The Court of Appeal (Meagher and White JJA, Emmett AJA), dismissing the appeal, held:

Per White JA (Meagher JA and Emmett AJA agreeing at [1] and [91] respectively)

As to issue (a) (apprehended/actual bias):

1. The opinion expressed by the primary judge, although not addressing the statutory criteria, was unexceptionable. The opinion expressed was far from saying that that it is only in special circumstances that an able-bodied adult son would be entitled to claim on his parents’ estate. Nor did the appellant establish that the primary judge could not be dissuaded from such an opinion: [48], [61].

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, applied.

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, referred to.

2. The primary judge’s ruling that evidence as to the situation of the deceased’s other children was relevant was plainly correct, nor did the primary judge’s adherence to this view evidence actual or apprehended bias: [52]-[54].

Kleinig v Neal (No 2) [1981] 2 NSWLR 532, referred to.

3. Nor do the primary judge’s criticisms of the appellant’s legal representatives give rise to apprehended to actual bias. The concerns expressed by the primary judge in relation to the costs of the application and the volume and breadth of evidence were well founded: [62]-[66].

As to issue (b) (error in not making order for provision):

4. The present is not a case where the principle of deference to the judgment of a capable testator was applicable because, as the primary judge recognised, the testator knew nothing about the appellant’s circumstances: [75]-[76].

Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161, Squire v Squire [2019] NSWCA 90, referred to.

Friend v Brien [2014] NSWSC 613, Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, Sgro v Thompson [2017] NSWCA 326, distinguished.

5. However, on re-exercise of the discretion, the primary judge’s ultimate conclusion was nonetheless correct given the financial position of the appellant and his wife, the size of the estate and the prejudicial effect an order for provision would have on the deceased’s widow: [80]-[83].

**********

Judgment

1. MEAGHER JA: I agree for the reasons given by White JA that this appeal should be dismissed with costs.

2. WHITE JA: This is an appeal from an order of the Equity Division (Pembroke J) dismissing the appellant’s summons. The appellant had sought a family provision order under s 59 of the Succession Act 2006 (NSW) from the estate or notional estate of the late Colin Richard Olsen of Manly (Olsen v Olsen [2019] NSWSC 217).

3. As appears below the appellant not only submits that the primary judge erred in dismissing the application. He also asserts that the judgment is vitiated for actual or apprehended bias and that the judge failed to give genuine consideration to the application. For the reasons which follow those grounds are untenable. The appeal should be dismissed.

4. The deceased died on 17 July 2016 aged 87 years.

5. The appellant is a son of the deceased. He was born on 5 November 1958. He was a child of the deceased’s first marriage. The deceased and the appellant’s mother were married in December 1957. They separated in 1959 when the appellant was about nine months old.

6. The deceased married a second time on 17 December 1960. He and his second wife, Faye Beverley Olsen, had three children: Marc, in 1962, Micheline, born in 1963, and Dean, born in 1969. The deceased made a will dated 26 May 2015. His signature to the will was attested by only one witness. However, the parties were agreed that the will was operative as an informal will of the deceased pursuant to s 8 of the Succession Act. By the will he appointed his son, Dean, as his executor. He gave his whole estate to his wife. If she died before him, then he left specific properties and goods to the three children of his second marriage, Marc, Micheline and Dean, in different proportions. He made no provision for the appellant.

7. Dean Olsen did not obtain a grant of probate of the informal will. The primary judge was informed that he was advised that the assets of the estate could be distributed without the need for obtaining a grant. No order was made granting administration to Dean Olsen or anyone else to permit the application for a family provision order to be dealt with (Succession Act, s 91). It was apparently common ground that such an order would be made if, but only if, it were held that the appellant was entitled to an order for provision.

8. Dean Olsen deposed that at the date of death the assets of the deceased amounted to approximately $379,816.97, consisting of a boat with an estimated value of $12,750, two cars with a combined estimated value of $9,000, and one ordinary share in Richard Castle & Co Pty Ltd (“the Company”) whose value he estimated to be $358,066.97. The Company no longer traded. The Company had issued two shares, one to the deceased and the other to Beverley Olsen. The deceased’s share was valued on the basis of an estimate of half of the Company’s assets. Those assets consisted of a property in Bonnells Bay with an estimated value of approximately $576,000 and money in a bank account. Dean Olsen deposed that after funeral expenses, he estimated the gross distributable estate of the deceased to be approximately $343,801 as at 22 August 2017. Further, one of the cars and the boat had already been distributed.

9. In his updating affidavit at the time of the hearing, Dean Olsen deposed that the assets of the estate then consisted of the one ordinary share in the Company and one of the motor vehicles with an estimated value of $6,800.

10. It was common ground that there were two pieces of land of which the deceased was a joint tenant and two jointly owned bank accounts that could be designated as notional estate. The deceased and his wife owned the matrimonial home in Manly as joint tenants. It had been valued at between $4 million and $4.4 million. The deceased and his wife also had two jointly-owned bank accounts to a value of $57,529.79. These assets passed to Beverley by survivorship.

11. The deceased was a joint tenant of a property in Beacon Hill co-owned with Beverley and his daughter Micheline. It was valued at $1.5 million. The appellant did not seek to have the Beacon Hill property or any interest in it designated as notional estate.

12. The appellant carries on his profession as a solicitor through AMC Lawyers Pty Ltd. The practice is carried on from a property adjoining his and his wife’s residence in Waratah, a suburb of Newcastle. It appears from the appellant’s tax returns that he derives no income from the practice. Rather, the income from the practice is directed by payment of management fees, either to his wife or to the trustee of what his counsel called a “service trust”, called the Lensie Trust. No such income was reflected in the profit and loss statement of the Lensie Trust that was tendered. The appellant’s 2016 income tax return recorded that in the 2016 financial year the appellant had taxable income of $80,954. This included $52,954 by way of a State Super Monthly pension. There was an additional income of $28,000 described as allowances/earnings tips/directors fees. The respondents accepted that this reflected income that came from AMC Lawyers Pty Ltd, albeit not by way of wages.

13. In the same financial year the appellant’s wife had a taxable income of $80,628. In the financial year ended 30 June 2017 the appellant’s taxable income was $98,578 and his wife’s taxable income was $92,689. In other words, their combined taxable income was about $190,000.

14. The appellant was 60 at the time of trial. From the time he turned 60 his pension of approximately $58,000 per annum was tax-free. The pension is indexed. The evidence did not disclose whether the pension was indexed to CPI, average earnings or the earnings of a particular position within the Office of the Director of Public Prosecutions in which the appellant formerly worked and from which he derives his pension.

15. The appellant has minimal assets. His wife is the owner or part-owner of two properties in Queen Street, Waratah, and three other properties. She deposed that she had all the significant assets of the family in her name. She deposed to having assets whose value she estimated to be $1,385,000 and liabilities (other than to AMC Lawyers) of approximately $362,000. It appears that Mr Olsen owes a tax debt of approximately $65,000 and AMC Lawyers owes tax debts of approximately $91,000. Both Mr and Mrs Olsen are indebted to AMC Lawyers for almost $500,000.

Primary judge’s reasons

16. The primary judge observed (Judgment [2]) that Mr Olsen’s claim was limited to a sum of $250,000 to carry out repairs to one or both of two adjoining properties in Waratah near Newcastle. Both properties are owned by the appellant’s wife. She and the plaintiff live in one property and operate a legal practice from the other. His Honour observed that no claim was put forward for any other sum that could be said to be necessary for the appellant’s maintenance or advancement in life (Judgment [2]).

17. The primary judge did not dismiss the claim on the ground that the provision sought was not for the maintenance or advancement in life of the appellant, but rather for his wife (Mayfield v Lloyd-Williams [2004] NSWSC 419 at [135]). That contention was not raised below, nor on appeal.

18. The primary judge made some general comments about claims by adult sons referring to In re Sinnott (1948) VLR 279 at 280, Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20; [1962] HCA 19 and Stott v Cook [1960] 33 ALJR 447 at 455. His Honour did not refer to, and was not referred to, Gorton v Parks (1989) 17 NSWLR 1 or Taylor v Farrugia [2009] NSWSC 801.

19. The primary judge then said (Judgment [5]):

“Each case depends on its own facts, but courts are often unwilling to override the wishes of a father who has made an apparently rational judgment about an adult, able-bodied son who has made his own way independently in life, established his own career and created his own family. The ties that bind naturally lessen and any moral obligation diminishes. It may be common for parents to leave their estates to their adult children – some of whom receive a happy windfall in middle age – but absent special circumstances, there is no legal or moral justification for an able-bodied adult son clinging to a sense of entitlement that he will necessarily benefit from his parent’s estate.”

20. The primary judge had made similar comments in a pre-trial directions hearing referred to below at [38]-[46]. The repetition of those sentiments at [5] of the judgment quoted above was said to demonstrate actual bias. For the reasons below, that contention is untenable.

21. The primary judge then repeated a view he had expressed in other cases as to the frequency of unmeritorious claims being brought for family provision orders. His Honour said (Judgment [6]):

“There have been numerous decisions of this court in recent years dismissing claims by adult sons and daughters. Many of these cases, like this one, are conducted on a speculative basis pursuant to a conditional costs agreement. Such cases sometimes unnecessarily fuel the expectations of claimants, ultimately causing more hardship and heartache. Too often they waste the resources of the court and the money of the litigants. The growing frequency of these cases, and the speculative basis on which many are conducted, is a cause for concern. White JA adverted to the issue in Sgro v Thompson [2017] NSWCA 326 at [88]:

Applications are filed in the Supreme Court’s Family Provision List at an average rate of about 80 per month. One commentator has criticised the apparent readiness of courts to vary the expressed will of the deceased by granting family provision claims (A Gray, ‘Family Provision Applications: A Critique’ (2017) 91 ALJ 750.”

22. The primary judge then addressed the relevant test to be applied under s 59(1)(c) of the Succession Act in unexceptionable terms. He said:

“7 The court’s task in these cases is not to decide what is reasonable or fair but to apply the statutory formula relevantly specified in Section 59(c) of the Succession Act 2006 (NSW), giving due recognition to the importance of the testator’s freedom of testamentary disposition. The statutory precondition for the exercise of the court’s discretion to make a family provision order is that the court be satisfied that ‘adequate provision for the proper maintenance, education or advancement in life’ of the claimant has not been made by the will of the deceased person.

8   The words ‘proper’ and ‘adequate’ are of course relative concepts. In Pontifical Society, Dixon CJ explained at 19:

‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them.

He added:

There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.”

23. The primary judge then addressed deficiencies in the appellant’s case. His Honour said:

“9   The presentation of the plaintiff’s case never made it clear how a claim for the cost of repairs to his wife’s property was supposed to meet the statutory criteria. No attention was specifically directed to why the sum of $250,000 was necessary for his ‘proper maintenance’ or ‘proper advancement in life’. The case seemed to be framed in a different way. The focus of the plaintiff’s affidavits, which he substantially drafted himself, and the focus of much of the submissions on his behalf, were more concerned to address the material circumstances of the plaintiff’s half-siblings – as if the hearing was fundamentally an exercise in comparing his material wealth and advantages with theirs, rather than demonstrating that the testator’s freedom of testamentary disposition should be interfered with because of a failure to make adequate provision for the plaintiff’s ‘proper maintenance’ or ‘proper advancement in life’.

10   Among other things, the plaintiff’s case ignored the dysfunction and tribulations of the testator’s other three children while failing to acknowledge adequately his own stable, happy and moderately successful circumstances. The plaintiff’s counsel even objected to the evidence of the needs and financial circumstances of the testator’s other three children. In reality, and in many important respects, including non-material respects, the circumstances of the plaintiff, his wife and their two adult sons are more fortunate than those of his half-siblings. It is understandable that the testator directed his attention to his widow and their three troubled children. I have no doubt that the testator regarded the plaintiff as having been more successful in life than his other progeny.”

24. The primary judge then addressed the terms of the will and the testator’s recognition of the position of Micheline, and continued (Judgment [14]):

“Having regard to all of the circumstances, I am satisfied that the testator’s will is apparently rational and explicable. He appears to have made a judgment ‘apparently conscientiously’. Others may possibly have been more generous to an adult son born from an earlier brief marriage many years ago, but I am far from certain about that. The basis for the testator’s exercise of judgment is explicable and understandable. I do not think his will is perverse or that it represents an abdication of responsibility. His counsel did not suggest so. It represents a choice made conscientiously by an elderly father, doing what he thought was best for his family. I have concluded that in this case, the testator’s judgment should be respected.”

25. The primary judge then addressed the size of the estate, the claims of the deceased’s widow and three children and the appellant’s circumstances. He was critical of the appellant’s affidavit. He said (Judgment [25]):

“I was not impressed by the plaintiff’s affidavit evidence. Not only did it consist of a rambling and unhelpful historical account of childhood minutiae, with much unreliable and largely irrelevant assertion about his father’s past property dealings, but it was notable for the number of relevant matters that were omitted, especially relating to the financial affairs of himself and his wife. Some matters emerged only during his cross-examination and the evidentiary picture remains incomplete and unsatisfactory, including in relation to a family trust known as the Lensie Trust. I did not think that the plaintiff was forthcoming. And it seemed obvious to me that he was overstating the ailments from which he has suffered. He retired from the DPP on medical grounds in March 2005 because of stress related to over-work. In November that year he started his own legal practice, which has prospered.”

26. The primary judge then addressed the appellant’s financial circumstances, concluding (Judgment [34]):

“I am confident that the plaintiff and his wife have the resources and the acumen to continue to live with the same modest success that they have done in the past. They have demonstrated their resourcefulness. The properties, the indexed pension, the income from the legal practice, and eventually any goodwill on its sale, should provide moderate security for their future, current borrowings notwithstanding.”

27. The primary judge then referred to how, as he saw it, the Court should respect the exercise of a testator’s judgment, concluding (Judgment [40]):

“I have said enough to make clear that the circumstances do not, in my view, justify the conclusion that the testator’s failure to make provision for the plaintiff should be disturbed. In my view, the testator was reasonably entitled to make no provision for his first born son who, despite adversity in his early years, has made more of his life than his other three children. The testator is unlikely to have been aware of the detail of the financial affairs of the plaintiff and his wife. But if he had been aware, I suspect he would have been proud and impressed with what his son had achieved. A legacy of a few hundred thousand dollars would have been a thoughtful gesture. But the testator was not obliged to be thoughtful.”

28. The primary judge concluded that having regard to the matters specified in s 60(2)(a)-(e), (g), (j) and (p) of the Succession Act, he was not satisfied that adequate provision for the appellant’s proper maintenance or advancement in life had not been made by the will of the testator (Judgment [41]). His Honour continued (at [41]):

“In the circumstances, I regard the decision by the testator to make no provision for the plaintiff as reasonable, justifiable and understandable.”

29. The primary judge then expressed concern about the level of costs incurred, and, in particular, the level of the appellant’s costs. Although the claim propounded at the hearing was for $250,000, the estimate of the appellant’s costs from commencement to conclusion of the hearing was $178,050. The primary judge said that he regarded that amount as “discreditable”. He complained that the appellant’s affidavit evidence had been unhelpful and far more extensive than it needed to be, and noted that junior counsel had disavowed responsibility, saying that the appellant (a solicitor) insisted on drawing his own affidavits. The primary judge was critical of the appellant’s legal representatives for allowing that to happen (Judgment [45]). The primary judge concluded that the case had achieved nothing, except unnecessary cost and unwanted misery and stress (Judgment [48]). His Honour took credit for the hearing of the case being confined to one day rather than the three days that his Honour said had been proposed. As the appellant argued on appeal, the original estimate of three days was made when Micheline, who had been joined as a defendant to the appellant’s summons, had filed a cross-claim claiming to be beneficially entitled to the whole of the beneficial interest in the property at Beacon Hill. By his amended summons, the appellant had sought an order that the deceased’s one-third share in the property that passed by survivorship to Micheline and Beverley be designated as notional estate. This Court was informed that that claim was not pressed at the hearing before the primary judge. Micheline’s cross-claim was discontinued on 13 February 2019.

30. The primary judge was not told that the three-day estimate for the hearing had been made before the cross-claim had been discontinued, although that would have been apparent from the file.

31. The primary judge concluded that the summons should be dismissed, but made no order as to costs on the basis that the estate was better able to absorb the respondent’s legal costs than the appellant was able to afford them (Judgment [49]). The respondents do not apply for leave to cross-appeal from the primary judge’s costs order.

Grounds of appeal

32. The appellant appealed on the following grounds:

“1.   The primary judge’s decision was affected by bias in that it was induced by his failure to bring an impartial and unprejudiced mind to the resolution of the question before his Honour.

2.   There is a reasonable apprehension the primary judge’s decision was affected by bias in that it was induced by the primary judge’s failure in all the circumstances to conduct the hearing in a manner in which a fair-minded observer could be satisfied he had brought an impartial and unprejudiced mind to the resolution of the question he was required to decide.

3.   In the alternative to grounds 1 and 2, the transcript and the published reasons for judgment of the hearing before the primary judge, and particularly the course of closing submissions, revealed that his Honour failed to give proper, genuine and realistic consideration to the merits of the case.

4.   The primary judge erred in fact and law in determining the appellant had not been left without adequate provision for his proper maintenance, education and advancement (J14) and (J40).

5.   The primary judge erred at law in finding the legislation permitted him to consider the financial needs and circumstances of non-beneficiaries who had incorrectly raised their financial circumstances as competing claimants (J10); (TT 26/2/19 page 5 line 22 – page 6 line 7); (TT 5/3/19 page 9 line 49 – page 10 line 2).

6.   The primary judge’s evaluative determination or exercise of discretion miscarried by him taking into account irrelevant considerations (J10), (J18-21), (J33).”

33. The appellant sought an order that the judgment of the primary judge be set aside and that the matter be remitted to the Equity Division to be heard by a judge other than the primary judge, or alternatively that this Court itself make an order for provision in favour of the appellant.

Actual or apprehended bias

34. If either of the first two grounds of appeal were established, that is, actual bias or apprehended bias, the proceedings should be referred to another judge of the Equity Division for retrial. These grounds of appeal should be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [116]-[117], cf [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]).

35. It was common ground that the principles in relation to a finding of actual bias were correctly expounded by Gleeson JA in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74] as follows:

“68    A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

69    Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

70    As Gleeson CJ and Gummow J observed in that case at [71]:

The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.

71    In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

72    His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

73    The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289–290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.

74    The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38] per von Doussa J, who explained:

… Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party‘s interests such as a hostile attitude throughout the hearing or ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias. [Citations omitted.]”

36. The test of apprehended bias does not require a determination of the actual mind of the judge. Rather, the question is whether a fair-minded and informed, lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]; and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [12], [57]). The question is whether the informed and fair-minded lay observer might apprehend that the primary judge might have predetermined the issue, such that he or she was not open to persuasion, rather than whether he or she did so.

37. No objection was taken at the trial to the primary judge’s statements as giving rise to either actual or apprehended bias. The respondents submit that the failure to object constituted waiver of any objection to the judge’s continuing to hear and determine the matter (Vakuata v Kelly (1989) 167 CLR 568 at 573, 577, 587-588; [1989] HCA 44; Michael Wilson & Partners at [76]). Prior to the delivery of judgment the primary judge had stated more than once that he had not formed a view and that the concerns he expressed about the appellant’s case were merely preliminary and that he had not made up his mind, but would be listening to the evidence and the submissions. The appellant submitted that it was not until the very end of the hearing that the primary judge indicated a lack of impartiality and that this only became clear on the publication of the primary judge’s reasons on 15 March 2019.

38. The matter was listed before the primary judge for hearing on 5 March 2019. On 26 February 2019 the primary judge had what was described as a pre-trial hearing. The hearing was referred to as a directions hearing, although no directions were made. The hearing was attended by junior counsel for the appellant and the solicitor for the respondents. After the appearances were taken and the court book was handed up, the primary judge said as follows:

“... Now Ms Clarke [counsel for the plaintiff], my associate, at my request, made an observation about the extent of the plaintiff’s affidavits. Mr Morrissey's written submissions probably quite adequately summarise the plaintiff's position. It is not as if there is a lot of controversy about the plaintiff’s position. He does not need to go on as much as he has done to explain the situation and, frankly, these cases are not a case for litigants to unburden themselves of deep-seated resentments about their past life.

The fact is he is 61 years of age. I think he is probably the most successful of the four children of the deceased. He has had a reasonably successful career as a solicitor. I know he was retired a little early, but he and his wife are making their way.

Now, Mr Morrissey's written submissions quite fairly refer you to the matter in

the Court of Appeal in Sgro v Thompson and my decision in Steinmetz v Shannon, and another of mine called Revell v Revell, which my tipstaff will hand down later.

But claims by adult children are troubling. The scheme of the will, in the circumstances of the widow and the three children, is rational. We are not here to distribute according to some notion of fairness and equity and I must stress that because I am not sure that parents of litigants in this court understand it. Fairness and equity are not touchstones under the Succession Act.

It is all about whether the testator ought to make provision for the education, advancement and maintenance in life to someone to whom he had a moral obligation. And it gets very difficult to say that a testator owes a moral obligation to someone who has grown up, has adult children, has a wife and with a business and with assets and real estate. And when I compare that to the other three children, he looks to be the most successful.

I have not formed a view but I have formed some preliminary concerns, and I

don't want to see a situation where this man, who is not wealthy, not only wastes costs but incurs a costs order, if that is what happens.

Sometimes, I know, clients who are former solicitors are the worst possible clients. They get a bee in their bonnet and they think they know best. But I think legal practitioners have an obligation to their clients in cases like this to defuse their expectations.

Now, as I said, there is no doubt aspects of the case of which I am unaware and I will listen carefully to the evidence and the submissions, but I started by saying that the plaintiff's evidence is far more extensive than it needs to be.”

39. Counsel for the appellant advised that the appellant himself had insisted on drawing his own submissions and the primary judge referred to the need of legal representatives to control the enthusiasm of their clients and said he would not allow the appellant to be cross-examined for a day on all of the issues that he raised. The primary judge said:

“The sooner we get into a consideration of the balance of his circumstances and those of the three other children and the widow the better. But, frankly, they are not controversial either. This case should not be too long.”

40. There was a discussion about how long the case should take. The parties were agreed that it should only take one day. The judge was concerned that it had been listed for three days. He was not told that the reason for the original listing of three days was due to a cross-claim that had since been discontinued. There was discussion about the circumstances of the deceased’s daughter, Micheline and the circumstances of the deceased’s son, Marc.

41. Counsel for the appellant said that the appellant was confused as to why the circumstances of the deceased’s three children with his second wife were raised as competing claims (an issue later raised at trial). The primary judge said:

“You should explain this to your client, because the task of the court is to ascertain whether in the circumstances the will was rational. If it was rational and then there is even more reason for upholding it especially where the claimant is an adult able-bodied male.”

42. His Honour added:

“Yes, but the testator is having regard, as testators tend to, to his widow and the circumstances of their three children, who will no doubt inherit from her in due course. It is all the more reason why he might not want to dispute the estate in advance of the death of his wife or – well, I will leave it at that.”

43. His Honour said:

“So there won’t be any question of the relevance of the three children of Faye.

...

Their circumstances are relevant to my assessment of the apparent rationality of the will and the fairness – I use the word ‘fairness’ and I should not – the appropriateness of the disposition of the estate to the widow.”

44. The primary judge said that it looked to him as if the appellant were the most successful of all four of the children. His Honour urged the parties to take into account what he had said and continued:

“And that your own client will also take heed of what I have said, Ms Clarke. And if you need the transcript, let my associate know, because I think that sensibly if the parties are well advised, as I am sure they are, they ought not to need to have three days in court in order to reach a resolution which can accommodate the expectations of both parties.”

45. After the appellant’s counsel made an allusion to the appellant’s attempts at settlement having been met with the “proverbial wall”, the primary judge warned the respondents’ solicitor that if he formed the view that the respondents’ position had been unreasonable, he would certainly ensure that a costs order was made which reflected that.

46. As to the duration of the hearing, counsel for the appellant estimated that two days to one and a bit maximum was reasonable. The primary judge said:

“I agree. Ms Clarke, don’t take anything I have said as personal criticism. I have got no idea who is involved or who has given advice. Please also be assured that I will be listening to the evidence and the submissions and make up my mind over what Mr Coleman has to say. The views I have expressed this morning are only tentative.”

47. The directions hearing concluded shortly thereafter.

48. The appellant submitted that the primary judge had a fixed opinion concerning claims for family provision orders made by able-bodied adult sons. As initially formulated in oral submissions, the appellant submitted that the primary judge’s opinion was as formulated at [5] of his Honour’s reasons (quoted at [19] above). That observation of the primary judge does not suggest any bias against the appellant, even if it were accepted that the primary judge could not be persuaded to modify that opinion. The opinions expressed by his Honour at [5] are unexceptionable, although they do not address the statutory criteria for the making of a family provision order. As to the third sentence, there is no justification for an able-bodied adult son to cling to a sense of entitlement that he will necessarily benefit from his parents’ estate. That is far from saying that it is only in special circumstances that an able-bodied adult son would be entitled to claim on his parents’ estate.

49. The appellant submitted that the primary judge’s comments at the pre-trial hearing on 26 February 2019 demonstrated a bias, but that the fears of bias were alleviated by his Honour’s statement that he was only expressing preliminary views. The appellant rightly submitted that at the pre-trial hearing the primary judge expressed some scepticism about the appellant’s claim. He referred the appellant’s counsel to the judgment of this Court in Sgro v Thompson [2017] NSWCA 326 and to his Honour’s judgments in Steinmetz v Shannon [2018] NSWSC 1090 and Revell v Revell [2016] NSWSC 947 and commented adversely on the appellant’s affidavit.

50. Although at the directions hearing on 26 February 2019 the primary judge observed that not all of the affidavits were in the court file, it is clear that the primary judge had reviewed the principal affidavits. His Honour attempted to bring the parties to a settlement. In doing so, he expressed a prima facie view as to the merits of the appellant’s application. He expressed concern about the minutiae of the appellant’s affidavit in his unburdening himself of “deep-seated resentments about [his] past life”. That concern was justified. His assessment that the appellant was the most successful of the deceased’s four children was also justified on the affidavits. There is no basis for saying that the primary judge had closed his mind on these issues. Neither the conduct at the trial, nor the primary judge’s reasons, suggest that he had closed his mind.

51. The first basis for the appellant’s complaint that the judge had closed his mind was that at the directions hearing on 26 February 2019 he expressed the view that there would be no question that the position of the three children of the deceased and his second wife would be relevant.

52. Objection to their evidence was taken at the trial. Mr Coleman SC who appeared with Ms Clarke for the appellant, submitted that s 60(2)(a) and (b) and the following paragraphs of s 60(2) of the Succession Act made clear “... the statutory limit on the obligations or responsibilities owed by the deceased to a class of persons [and] neither Marc nor Dean falls in that class”. Counsel submitted that because the deceased’s children were neither beneficiaries of the estate, nor had they applied for provision from the estate, their position was irrelevant to a determination under s 59(2) as to whether provision should be made out of the estate for the maintenance or advancement in life of the appellant.

53. No authority was cited in support of this submission. The primary judge rejected it. His Honour said:

“He’s thinking about his wife, he’s thinking about his three children. He’s conscious of all the properties at his disposal and the assets to be distributed. I’ve never heard such an argument Mr Coleman. Subsection (2) of s 60 is entirely permissive. It’s a statement of the matters that may be concerned by the Court. It’s not exclusive and it’s completely common to have regard to matters such as the situation and the circumstances of other children whether they are beneficiaries or whether they make an application or not.”

54. The primary judge’s adherence to the view which he expressed in the pre-trial hearing is not evidence of actual nor apprehended bias. His Honour’s ruling was also correct. Section 60(2)(p) provides that the court may consider any matter it considers relevant. In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Holland J dealt with an objection as to the admissibility of evidence analogous to the objection taken in the present case. In a passage later cited with approval by this Court in Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 at [35]-[36], Holland J said:

“… It was submitted for the defendants that the mother's potential dependency upon the plaintiff was not relevant to a consideration of his claim on his father's estate. The defendants objected to the admissibility of evidence that was tendered on this matter. As it seemed to me that actual and potential burdens on the financial resources of an applicant existing at the date of death, including those for which there was only a moral and not a legal responsibility, could be material circumstances in considering an applicant's claim, I admitted the evidence that was tendered. As the mother herself can have no claim to provision for her maintenance out of the deceased's estate, any financial dependance of the mother upon an applicant son could not, I think, be used to increase the amount that would otherwise be ordered to be paid to the son if his claim was successful; but I see no reason why the court should not have the benefit of knowing all of the family circumstances in which a claimant finds himself in assessing whether the claimant has a need for provision for his own maintenance, education and advancement in life.”

55. Kleinig v Neal (No. 2) was not cited to the primary judge. It should have been cited by the appellant and distinguished, if it could be. It supported the primary judge’s view. The primary judge was plainly correct in taking into consideration the position of the deceased’s three children by his second marriage to whom he had a moral obligation which could be expected to be fulfilled through his leaving his estate to his wife. Neither the primary judge’s statement at the pre-trial hearing that he would take the position of the deceased’s children by his second marriage into account, nor his decision to that effect at the trial, is any evidence of bias or apprehended bias.

56. In his written submissions the appellant raised a second ground of bias and apprehended bias. He stated that he had reviewed decisions given by the primary judge in family provision cases dating back to 2014 and in the period from March 2015 to July 2019 the primary judge had not found in favour of a plaintiff in a family provision claim. This statement was apparently advanced in support of a submission that the primary judge was biased against claimants for family provision orders, or at least against such claimants who were able-bodied males.

57. The schedule of judgments attached showed that in 2015 the primary judge had made findings in favour of a plaintiff seeking a family provision order in two out of five cases. The schedule stated that the primary judge had dismissed summonses for family provision orders in two cases in 2016, one in 2017, two in 2018, and one in 2019 prior to the decision in the present case. One of those decisions (Steinmetz v Shannon [2018] NSWSC 1090) was overturned on appeal.

58. When asked how this submission could stand with the decision of the Full Court of the Federal Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, Mr Coleman SC abandoned the submission.

59. In ALA15 v Minister for Immigration and Border Protection the Full Court of the Federal Court said (at [41]):

“Fourthly, we accept the Minister’s submission that the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge. As Heerey J observed at [26] and [33] in Vietnam Veterans’ Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489 ; (1994) 52 FCR 34 (Vietnam Veterans’ case) (in rejecting as irrelevant statistical evidence which purported to show that a particular decision-maker was more likely to decide against applicants than other decision-makers):

All such evidence could show is that, because a decision-maker has decided a particular kind of case in a particular way in the past, he or she is likely to decide a case of the same nature in the same way in the future. Even if that be accepted as a conclusion of fact, it does not make out a case of apparent bias. The law is not so ignorant or disdainful of human nature as to assume that judges or quasi-judicial decision-makers are automatons. It may well be that, for example, it can be predicted from past experience that judge A is more likely to impose a prison term for a particular crime than judge B, or that judge C will award greater damages for the same sort of injury than judge D. It is for this very reason that the listing of cases is a jealously guarded element of any system of justice …

…

For the foregoing reasons I do not think the statistical evidence proffered has any probative effect as to the correctness or otherwise of decisions of panels over which Mr Marsh presided. But there is the further fundamental obstacle that, even if incorrectness be proved in respect of such decisions, and shown to exist at a higher level compared with the decisions of panels without Mr Marsh, that does not establish a circumstance which might give rise to a reasonable apprehension of bias. All court systems and many administrative decision-making systems provide for appeals. As part of such appeal processes, decisions are routinely set aside for errors of fact or law. But in the vast majority of such cases there is no suggestion of apparent bias.”

60. In the course of oral submissions Mr Coleman SC modified his characterisation of the primary judge’s opinion that was said to be not amenable to argument to an opinion that, except in special circumstances, an adult able-bodied son should not be entitled to a family provision order out of the deceased estate of his parent. If the primary judge had a predilection to refusing such an application, there is nothing to show that that predilection was not amenable to argument. In Gorton v Parks Bryson J (as his Honour then was) said (at 10) that in his Honour’s view the bare fact of paternity was of very great importance in morality and said that views expressed by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (at 18) that the bare fact of paternity and no other mutual relation could not justify a claim for a family provision order was not consistent with contemporaneous concepts of moral duty.

61. It is not possible to say that the primary judge could not be dissuaded from what is alleged to be his fixed opinion that an able-bodied adult son should not be entitled to a family provision order against the estate of one of his parents when the principal authority that could be cited in contradiction of that opinion was not cited.

62. The other ground upon which the appellant contended that the primary judge was biased, or on which an hypothetical lay observer might have apprehended that the judge might have been biased, was his criticism of the appellant’s legal representatives. The primary judge said (Judgment [43]):

“The estimate of the plaintiff’s costs from commencement to conclusion of the proceeding is $178,050. I regard that amount as discreditable. It is made up of $80,000 for the solicitor and $98,050 for counsel, including unstated disbursements that could only be minimal. The claim propounded at the hearing was for $250,000. The hearing took one day. The plaintiff himself was largely responsible for his affidavit evidence. (I will return to that issue). The case hardly justified senior counsel. It was not complex. There was no issue as to the plaintiff’s eligibility. Quite why an estimate of three hearing days was given to the Registrar is difficult to fathom – other than that it increased the potential legal fees.”

63. The primary judge was in error in opining that the only basis on which an estimate of three hearing days might have been given to the Registrar was that that estimate would increase potential legal fees. But his Honour’s concern that the plaintiff’s estimated costs were $178,050 where his claim as propounded at the hearing was for approximately $250,000 was justifiable. On appeal, counsel said that the solicitor’s estimate of counsel’s fees of $98,050 was wrong by a factor of 10, but that was not disclosed to the primary judge.

64. The primary judge also expressed the following concern (Judgment [45]):

“When I complained about the plaintiff’s affidavit evidence being unhelpful and far more extensive tha[n] it needed to be, junior counsel disavowed responsibility. She said ‘The plaintiff insisted on drawing his own [affidavits]’. She added ‘We did not have control. It was a difficult situation’. This is, I am afraid, an abdication of the responsibility of the plaintiff’s legal representatives. No matter how determined a plaintiff may be to unburden himself of memories of real or imagined distant family events, his solicitor and counsel are duty-bound to restrain his enthusiasms.”

65. Nor does this paragraph give rise to any apprehended, let alone actual, bias against the plaintiff. The primary judge’s concern was legitimate. His statement that solicitor and counsel were duty-bound to restrain the appellant’s enthusiasm to unburden himself of his memories was correct. The appellant’s principal affidavit dealt not only with his relationship with the deceased, but also in irrelevant detail with property purchased by the deceased for his half-siblings and stepmother and with the maintenance paid by the deceased to the plaintiff’s mother when he was a child. By way of example, the appellant deposed that when he became interested in girls (apparently sometime after he was 12) he was often embarrassed about his state of dress.

66. For these reasons I would reject the appellant’s grounds of appeal that the primary judge was biased, or that a reasonable hypothetical lay observer might have apprehended that the primary judge might have been biased.

Genuine consideration

67. The third ground of appeal was that the primary judge did not give proper, genuine and realistic consideration to the merits of the case.

68. The primary judge’s reasons for judgment negative this ground. Whether the primary judge’s reasons be correct or incorrect, they show a proper, genuine and realistic consideration of the merits of the case.

69. As explained in submissions, the reason for this ground is that at the commencement of the defendants’ final oral submissions (after hearing the submissions of the plaintiff’s counsel) there was the following exchange between the primary judge and Mr Morrissey, who appeared at trial for the defendants:

“HIS HONOUR: Thank you Mr Coleman. Mr Morrissey I might dwell on this overnight by the way after we've adjourned but I didn't warm to your clients and--

MORRISSEY: You mean Dean your Honour? You're referring to Dean?

HIS HONOUR: Your clients. All four of them. And it may be that the outcome is not something which either side will be happy with. That's so that tonight perhaps is your last chance because I won't be long giving a judgment I suspect. Do you understand?

MORRISSEY: I take it your Honour did not--

HIS HONOUR: I haven't made up my mind but if I - the judgment that I might well give might not please the family for whom you appear and may not please the plaintiff. It may not please anyone. That's why I inquired last week or the week before whether there'd been any attempt to resolve the claim.”

70. Mr Morrissey then addressed the primary judge. At the conclusion of his submission and submissions in reply, the primary judge said:

“Because everyone has travelled to Sydney, and these experiences are not pleasant, I think that I should not leave people wondering. I am grateful for the submissions. I’ve been assisted by the submissions and the evidence.

I propose to dismiss the summons and to make no order against the plaintiff for the costs of the defendant, and I will give my reasons as quickly as I can. It might only be a few days.”

71. I infer that at the commencement of the respondents’ submissions the primary judge had not made up his mind as to whether he would give judgment or announce the orders he proposed to make that day. Having heard the appellant’s counsel there could be no objection if he had made up his mind that the appellant’s claim would be dismissed. Even if the primary judge had not made up his mind at the conclusion of the submissions for the appellant as to the outcome of the claim, there is no substance to the ground that the primary judge did not give genuine consideration to the claim after having heard the respondents’ submissions and the limited submissions in reply. Ground 3 of the notice of appeal should also be rejected.

Grounds 4, 5 and 6

72. I have already indicated why ground 5 of the notice of appeal should be rejected.

73. Ground 6 was in substance a replication of ground 5. The appellant contended that the position of the deceased’s children was irrelevant. That is not so for the reasons articulated at [54] above.

74. Ground 4 of the notice of appeal did not specify with particularity the alleged error. There was some confusion during the hearing of the appeal as to the issue raised by ground 4. At one point, counsel for the appellant indicated that grounds 5 and 6 were particulars of ground 4 and that the appellant relied only on grounds 5 and 6 as supporting an order for provision in his favour. Were that so, it would suffice to stop here. However, at a later point, counsel submitted that there was an error in the approach taken by the primary judge in reaching his decision. The alleged error is apparent from the paragraphs of the judgment referred to in ground 4. In paragraph [14] the primary judge said that he was satisfied that the will was rational and explicable, that the testator’s judgment was apparently conscientious, and that the will was not perverse, nor did it represent an abdication of responsibility. In paragraph [40] the primary judge said that the circumstances did not justify a conclusion that the deceased’s failure to make provision for the appellant should be disturbed, but did not address the statutory criterion of whether “proper” maintenance or advancement in life for the appellant required some provision to be made for him.

72. Under the heading “The Testator’s Judgment” the primary judge referred to what I said in Friend v Brien [2014] NSWSC 613 at [62], Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] and Sgro v Thompson at [80]-[88]. I said that where it can be seen that a testator has duly considered the claims on his estate, respect should be given to the judgment of a capable testator who will have been in a better position than is a court to determine such claims so that considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the testator was placed. In this case, as the primary judge recognised, the testator knew nothing about the appellant’s circumstances.

73. The principle I sought to express in those cases, and to which I adhere, was not applicable to the present case. It was not a general plea for primacy of freedom of testamentary disposition. There may be some tension between the views of Meagher JA (with whom Macfarlan JA and Simpson AJA agreed) in Squire v Squire [2019] NSWCA 90 at [10] and the views of Brereton JA (with whom Simpson AJA also agreed at [151]) in Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 at [96]-[97]. In Squire v Squire (decided after the hearing of the appeal in Steinmetz v Shannon) Meagher JA said (at [10]) of the power to make a family provision order:

“This discretionary power is to be used sparingly and with regard to the deceased’s freedom of testamentary disposition, as ‘it was never meant that the Court should re-write the will of a testator’: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19 (Dixon CJ); Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [10] (Gleeson CJ).”

77. In contrast, in Steinmetz v Shannon Brereton JA said:

“The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. Testamentary freedom is constrained by the operation of the statutory jurisdiction, insofar as testators are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide.”

78. I adhere to the views I expressed in Steinmetz v Shannon at [49]-[56].

79. Although in paras [7] and [8] of his reasons (quoted at [22] above), the primary judge accurately stated the relevant principles, it does not appear that he applied those principles in reaching his decision. Rather, he proceeded on the basis that the will was rational and explicable. This would amount to an error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense justifying intervention if on re-exercise of the primary judge’s discretion I were to come to a different conclusion. Nonetheless, shorn of rhetoric, the primary judge’s conclusion was correct.

80. The appellant did not press a claim to have the Beacon Hill property, that was Micheline’s home, designated as notional estate. The only properties that could be available to satisfy the appellant’s claim for provision were the deceased’s share in the matrimonial home that passed to his widow by survivorship or the share of the company that owned the property at Bonnells Bay that was a substitute for the widow’s superannuation and which she described as her only lifeline.

81. The deceased’s primary moral obligation was to his wife (Steinmetz v Shannon at [98]-[107]).

82. There is no reason to doubt the primary judge’s conclusion that the properties owned by the appellant’s wife, his indexed pension, the income derived from his legal practice, and eventually any goodwill on sale, should provide moderate security for their future (Judgment [34]).

83. An order for provision in favour of the appellant that would require the sale of his share in Richard Castle Pty Ltd, or more likely, a consensual sale of the Bonnells Bay property, or the making of a notional estate order in respect of the matrimonial home, would deprive the deceased’s widow of her home or only financial resources that stood as a substitute for superannuation. The cash was exhausted by the costs of the litigation. To make a family provision order in the appellant’s favour would be antithetical to the deceased’s moral obligation to provide for his widow.

84. For these reasons the appeal should be dismissed with costs.

85. EMMETT AJA: The question in this appeal is whether a family provision order should be made under Pt 3.2 of Ch 3 of the Succession Act 2006 (NSW) in favour of the appellant, Mr Craig Olsen (Craig), in relation to the estate of the late Colin Olsen, who died on 17 July 2016 (the Deceased). Craig is a son of the Deceased by his first wife, whom the Deceased married in 1957. The Deceased and Craig’s mother separated in 1959 when Craig was nine months old. The Deceased married again and had three children by his second wife.

86. By his informal will, the Deceased left the whole of his estate to his second wife, to whom he had been married for 56 years. He provided that, if she pre-deceased him, the whole of his estate was to go to their three children in varying shares. The Deceased’s second wife survived him. No provision was made for Craig in the will.

87. The estate of the Deceased was valued at the date of his death at approximately $380,000. The Deceased had been a joint tenant with his wife of the matrimonial home and was a joint owner of two bank accounts. The Deceased was also the joint tenant of a property co-owned with his second wife and daughter. Those assets were not part of the estate but passed by survivorship.

88. Craig carried on a practice as a solicitor from a property adjoining the residence occupied by him and his wife in a suburb of Newcastle. The income from that practice is applied in the payment of management fees, either to his wife or to the trustee of a “service trust”. Craig is entitled to a pension of approximately $58,000 per annum free of income tax. He has minimal assets although his wife is the owner or part-owner of some five properties.

89. Craig filed an amended summons on 27 April 2018, joining his half-sister and the Deceased’s second wife as defendants seeking a family provision order. The original summons, filed 24 May 2017, had listed Craig’s half-brother Dean Olsen, appointed executor by the informal will of the Deceased, as sole defendant. On 15 March 2019, for reasons published on that day, a judge of the Equity Division (the primary judge) ordered that the amended summons be dismissed. His Honour was not satisfied that adequate provision for the proper maintenance and advancement in life of Craig had not been made by the Deceased and considered that the decision by the Deceased to make no provision for Craig was reasonable, justifiable and understandable. His Honour made no order for costs.

90. By notice of appeal filed on 5 June 2018, Craig appealed from the order made by the primary judge. The grounds of appeal may be restated as follows:

1. The primary judge’s decision was affected by bias in that it was induced by a failure to bring an impartial and unprejudiced mind to the resolution of the question before him;

2. There was a reasonable apprehension that the primary judge’s decision was effected by bias in that a fair-minded observer could not be satisfied that his Honour had brought an impartial and unprejudiced mind to the resolution of the question before him;

3. Alternatively, the primary judge failed to give proper, genuine and realistic consideration to the merits of the case;

4. The primary judge erred in fact and law in determining that Craig had not been left without adequate provision for his proper maintenance, education and advancement;

5. The primary judge erred at law in considering the financial needs and circumstances of non-beneficiaries who had incorrectly raised their financial circumstances as competing claimants; and

6. The primary judge’s evaluative determination or exercise of discretion miscarried by taking into account irrelevant considerations.

91. I have had the advantage of reading in draft form the proposed reasons of White JA for concluding that the appeal should be dismissed with costs. Specifically, I agree with his Honour’s conclusion that the grounds that the primary judge was either biased or that a hypothetical lay observer might have apprehended bias on his part, should be rejected. I also agree with White JA that the reasons of the primary judge demonstrate a proper, genuine and realistic consideration of the merits of the case. I also agree with White JA’s reasons for rejecting grounds 4, 5 and 6.

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Decision last updated: 19 November 2019