Summerville and ORS v Walsh S25/1998 [1998] HCATrans 337 (11 September 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S25 of 1998

B e t w e e n -

NETTA SUMMERVILLE, DAVID LEE SUMMERVILLE, JOHN McHUTCHEN and DOBIE DODD as Executors of the Estate of the Late FRANK HEMICH SUMMERVILLE

Applicants

and

MONICA MARY WALSH

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 11.23 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.J. FAGAN, SC, for the applicants. (instructed by Colin Biggers & Paisley)

MR P.J. DEAKIN, QC: If the Court pleases, for the respondent, with MR I.D. McROBERTS. (instructed by Stacks)

MR JACKSON: Your Honours, this is a case where, it is submitted, the approach taken by the Court of Appeal has converted negligence into strict liability. What it means, to put it shortly, is that whatever the circumstances, no matter how suddenly a solicitor is asked or how urgently a solicitor is required to make a will for a person and that person turns out to be physically unable to sign it, the solicitor is liable if he makes a mistake in the use of the execution provisions of section 7 of the Wills, Probate and Administration Act.

Your Honours, may I just say something, and I will do so very briefly, about the facts. The solicitor had known the deceased for some 20 years. That appears at page 3, about paragraph 3. Whilst, your Honours, we will accept the solicitor was acting as a solicitor, some of the evidence appeared to indicate that he had been actually retired for some years before this happened. But at page 3, at paragraph 3, he referred to the fact that he had known the deceased for about 20 years. In the early hours of the morning he was asked to go to the hospital. That is at page 2, paragraph 1. When he arrived, he was told - and your Honours will see this in paragraph 2 at page 2 - that the deceased had been shockingly burned. In fact, there was other evidence there had been a house fire. The deceased was dying. He would not "be with us much longer", and had lost his sight.

He was told he would be shocked by what he saw and he was told also that the deceased was agitated and wanted to make a will. What I have just said, your Honours, derives from that statement but also from the evidence which is recorded at page 4, lines - - -

GAUDRON J: But the following paragraphs indicate that he was not too shocked to take instructions, to read back what - to understand the instructions; to read them back to the person.

MR JACKSON: Well, your Honour, he was doing it - I would accept that he was not sufficiently shocked not to do it.

GAUDRON J: You are really asking this Court in this application, are you not, to review the factual issues; at least to put a different emphasis on them, because the principles are clear, are they not?

MR JACKSON: Yes, your Honour. What we are seeking to do is two things: one is to say that accepting the principles as they are - and one must recognise at the same time that what one is speaking about is negligence rather than a circumstance of strict liability, and what we would seek to say is that if one looks at the particular circumstances, then one sees that the circumstances are ones which, in our submission, could not be regarded as amounting to negligence and the approach taken by the Court of Appeal is one which amounts to - - -

GAUDRON J: Why can they not be treated as amounting to negligence? I mean, you must accept, must you not, that at least in some situations it would be negligent if a solicitor who held herself out as qualified to take instructions and draw wills did not know the requirement as to execution?

MR JACKSON: Your Honour, if, to use an example that is in the primary judge's reasons in this case, a solicitor were engaged to act for a quadriplegic or some other person who was not able to sign, then one would expect the solicitor to take the steps necessary to find out how the will should be executed. Your Honour, what we are seeking to say is this was not a case where there was any warning that this was about to happen. What it was was simply a case where a person was confronted with the need to make urgently a will for someone - - -

GAUDRON J: And the evidence of solicitors - although I have never quite understood why that is admissible - was that in their view they would expect a country solicitor to know these matters.

CALLINAN J: He said, "The evidence was it was a seminal section which would be bread and butter to any competent practising solicitor." That evidence was accepted.

MR JACKSON: Yes. May I say a couple of things about that, your Honour. What one has to realise is there was one solicitor who said that and one did not; one was the other way. The situation was that neither of the solicitors had ever seen this provision or this part of the provision utilised. Now, your Honours, one would accept, unreservedly, that broadly speaking the provision of section 7 that relates to the ordinary execution of wills is one that a competent solicitor could be expected to know, if they held themselves out as prepared to deal with wills, but this was not the - - -

GAUDRON J: Does this portray, as it were, a different emphasis on legal practice from that which used to obtain, say, 20 years ago when it was thought that the sine qua non of a competent solicitor was that he or she knew the provisions of the Wills, Probate and Administration Act intimately? Indeed, there are many people practising at the Bar of New South Wales now, I think, who were required to do the subject several times until it was certain that they knew it.

MR JACKSON: That may not have reflected so much on the seminal quality of the section but on the standard of those sitting for the examination. Your Honours, there are sometimes double causes for things. Your Honours, what I was seeking to say was that the provision, of course, has two elements. The first element is that which deals with the ordinary execution of wills. The second is that which deals with the extraordinary, if I can put it that way. What I am seeking to say in relation to it is that whilst one might accept that in relation to the ordinary execution of wills, that is something where one will expect, in circumstances where there had been a failure to bring about compliance with it, that would almost inevitably result in negligence.

What I am seeking to say, however, in relation to the other provision is that in circumstances where the evidence was that neither of the two very experienced solicitors who gave evidence had ever encountered a case in their many years of practice, that it is not right to say that on every occasion when a will has to be dealt with in that way is not executed properly that the result, though error, is negligence.

Your Honours, what we seek to say is that the particular circumstances were such that the solicitor was suddenly called upon to do this in circumstances which were unexpected and was not in a situation where he could go back, look at the book or check with any of those things.

Now, your Honours, what we would seek to say in relation to it is that the approach which we are suggesting, whether there is negligence by not being familiar with the particular provision, is one which does depend on the context. Could I give your Honours two references in that regard. The first is to the observation of the Judicial Committee in Stevens & Co v Allen (1921) 91 LJPC 32 at page 35. Your Honours will see, commencing about halfway down the first new paragraph on that page, what is said:

The question of negligence with regard to the performance of a solicitor's duty must, to some extent, be affected by the local conditions and the local circumstances -

and then they refer to the fact:

the negligence is alleged to be due to the ignorance of the provisions of an Act of Parliament.

But the important part, your Honours, a couple of lines further down:

it is impossible for their Lordships to know; but the question as to whether a solicitor is negligent or not in omitting to give effect to a statutory provision cannot be disentangled from the consideration of whether the statute which is involved is one which is of constant and common occurrence in practice, or whether it is one unfamiliar and remote.

And similar observations, your Honours, can be seen - - -

GAUDRON J: We cannot say that, though, about the provisions of the Wills, Probate and Administration Act.

MR JACKSON: Well, you can say it about the second part of section 7.

GAUDRON J: Well, you can say it about not encountering it but one would think that a knowledge of the provisions involved required knowledge of both provisions.

MR JACKSON: Your Honour, that is what we seek to say that what has been done in the case has been to treat the two parts of the provision as being absolutely equivalent. One is of common occurrence; one is not. Your Honours, the relevance of common occurrence must have some effect on the terms of the degree of one's knowledge of it and the expectation of knowledge of it. Your Honour, what I was going to say was that if one goes to the decision of the Court of Appeal in New Zealand in Bannerman Brydone Folster & Co v Murray & Anor (1972) NZLR 411, there are two references we would give your Honours. The first is page 421, and your Honours will see about line 35:

The standard of care to be expected of a solicitor on any particular occasion must of course be considered in relation to the circumstances of the moment and the nature of the problem the solicitor was confronted with.

And also, your Honours, at page 430. Your Honours will see at the top of that page:

The test is the performance of the reasonably competent and careful solicitor in the given circumstances. The last time the point managed to become a reportable issue in this Court was more than half a century ago -

in relation to the particular point.

So that, your Honours, what we would seek to submit is this was a provision of infrequent occurrence. The solicitor came into contact with the need to deal with it in really quite extraordinary circumstances and ones that must have been, in our submission, stressful, although, of course, he did it.

GAUDRON J: So, what is the question of principle?

MR JACKSON: Your Honour, the question of principle - the case involves two aspects. One, the question of principle, is whether the approach taken by the Court of Appeal is one which has brought about an equation of negligence and strict liability. The second - - -

GAUDRON J: But it has not, has it?

MR JACKSON: In my submission, it has.

GAUDRON J: The approach taken by the Court of Appeal was to consider whether or not the decision reached at first instance was reasonably open.

MR JACKSON: Yes. Well, your Honour, I am putting it in a compendious way but we would say, at both levels, that is the effect of the decision.

GAUDRON J: You have to say that in the circumstances of this case, in the factual circumstances of this case, the decision was not open.

MR JACKSON: Yes, your Honour.

GAUDRON J: But there is evidence to the contrary which was admitted without objection.

MR JACKSON: Your Honour, the evidence to the contrary was that a solicitor should know the whole of the terms of section 7. What we are seeking simply to say is that a solicitor should know that and failure to apply it in every circumstance - that is what the evidence amounted to - is simply to change negligence to strict liability. Now, no doubt, as always happens, of course, the issue arises in the context of a particular case but that is the effect of it and, in our submission, what we say in paragraphs 26, 27 and 28 on pages 70 and 71 of our submissions supports the grant of special leave. Your Honours, those are our submissions.

GAUDRON J: Thank you, Mr Jackson. We need not trouble you, Mr Deakin.

The Court is of the view that this case depends on its own facts and that the application raises only a question of the application of established principle to those facts. It thus raises no question appropriate to attract the grant of special leave. Special leave is refused.

MR DEAKIN: I seek an order for costs.

MR JACKSON: Nothing I can say, your Honours.

GAUDRON J: It is refused with costs.

AT 11.38 AM THE MATTER WAS CONCLUDED