Underwood v Gaudron [2015] NSWCA 269

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Underwood v Gaudron [2015] NSWCA 269 Hearing dates: 25 August 2015 Decision date: 08 September 2015 Before: 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 Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Succession Act 2006 (NSW), ss 58, 59, 60, 61, 90; Pt 3.2 Supreme Court Act 1970 (NSW), ss 75A, 101 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Burke v Burke [2015] NSWCA 195 Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 Hampson v Hampson [2010] NSWCA 359; 5 ASTLR 116 House v The King [1936] HCA 40; 55 CLR 499 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Phillip v James [2014] NSWCA 485; 85 NSWLR 619 Salmon v Osmond [2015] NSWCA 42 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Category: Principal judgment Parties: Helen Underwood (formerly Margaret Helen Gaudron) (Appellant) Mary Genevieve Gaudron (First Respondent) Kathryn Teresa Gaudron (Second Respondent) Representation: Counsel: Appellant self-represented Mr B Skinner (Respondents)