Basten JA at [1]; Macfarlan JA at [91]; Ward JA at [99]
Decision:
(1) Dismiss the motion to adduce further evidence on the appeal.
(2) Dismiss the appeal.
(3) Order that the appellant pay the respondents’ costs in this Court.
Catchwords:
BIAS – proceedings involving retired justice of High Court – lack of personal relationship between trial judge and retired judge – whether seniority and standing in legal profession gave rise to subconscious bias on the part of the trial judge
BIAS – pre-judgment – evidence from affidavit not read at trial relied on by the trial judge in reasons for judgment – trial judge acknowledged reading all evidence on file at the commencement of trial – whether parts of judgment written prior to hearing – whether disadvantage to appellant – whether pre-judgment on the part of trial judge – Civil Procedure Act 2005 (NSW), s 56
SUCCESSION – family provision – application by estranged daughter made out of time – applicant learnt about mother’s death one year after the fact – daughter obtained copy of will and foreshadowed claim but took no further steps for two more years – proceedings instituted more than three years after death of testator – estate then distributed – whether sufficient cause shown to make an order despite the delay – prejudice to beneficiaries demonstrated – Succession Act 2006 (NSW), s 58(2)
SUCCESSION – family provision – applicant’s needs uncontested – applicant changed name and moved interstate – evidence of difficult relationship between applicant and deceased prior to estrangement – no meaningful attempts to reconcile – whether erroneous fact findings by trial judge – whether too much weight placed on lengthy estrangement and applicant’s conduct – application by estranged daughter dismissed
[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.
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AGLC
Underwood v Gaudron [2015] NSWCA 269
Case
[2015] NSWCA 269
Decision Date
CaseChat Overview and Summary
In *Underwood v Gaudron*, the appellant, an estranged daughter, appealed to the Court of Appeal of New South Wales against the dismissal of her family provision claim. The claim was brought out of time, more than three years after the death of the testatrix, by which time the estate had already been distributed. The respondents were the beneficiaries of the estate. The appellant also sought to adduce further evidence on appeal.
The appeal raised several legal issues. Firstly, it concerned whether the trial judge had demonstrated actual or apprehended bias, either due to a lack of personal relationship with a retired justice of the High Court involved in the proceedings or due to pre-judgment, evidenced by the judge's reliance on affidavit material not formally read at trial and potentially written prior to the hearing. Secondly, the appeal questioned whether the trial judge had erred in law or fact in dismissing the family provision claim, specifically regarding the weight given to the lengthy estrangement between the appellant and the deceased, the appellant's conduct, and the prejudice to beneficiaries caused by the significant delay in bringing the claim, despite the uncontested needs of the applicant.
The Court of Appeal dismissed the motion to adduce further evidence, finding it unnecessary. Regarding the bias allegations, the Court found no basis for actual or apprehended bias on the part of the trial judge. The Court reasoned that the seniority and standing of the retired justice did not inherently create a subconscious bias in the trial judge, and the judge's acknowledgment of reviewing all filed evidence at the commencement of the trial, even if parts of the judgment were written earlier, did not demonstrate pre-judgment to the appellant's disadvantage. On the family provision claim, the Court upheld the trial judge's decision, finding that while the applicant's needs were uncontested, the significant delay in bringing the claim, the prejudice to the beneficiaries, and the evidence of a difficult relationship and lack of reconciliation attempts were sufficient grounds for dismissal under section 58(2) of the *Succession Act 2006* (NSW).
Consequently, the Court of Appeal dismissed the appeal and ordered the appellant to pay the respondents' costs.
Orders
Orders of the court
(1) Dismiss the motion to adduce further evidence on the appeal.
(2) Dismiss the appeal.
(3) Order that the appellant pay the respondents’ costs in this Court.