Home | Databases | WorldLII | Search | Feedback High Court of Australia Transcripts

You are here: 

Rosemary Hill t/a R.F. Hill & Associates v Van Erp B7/1995 [ 1995] HCATrans 224  (22 June 1995)

Office of the Registry

Brisbane No B7 of 1995

B e t w e e n -

ROSEMARY HILL trading as R.F. HILL & ASSOCIATES

Applicant

and

RONA VAN ERP

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 11.19 AM

Copyright in the High Court of Australia

MR P.A. KEANE, Solicitor-General for the State of Queensland: May it please the Court, I appear for the applicant with MR S.L. DOYLE. (instructed by Clayton Utz)

MR R.G. BAIN, QC: May it please the Court, I appear with my learned friend, MS E. FORD, for the respondent. (instructed by Chris Wlodarczyk & Co)

DAWSON J: It might be useful if we hear from you first, Mr Bain, we think.

MR BAIN: As your Honour pleases. We do not propose, your Honours, to repeat what is said in the outline. Our learned friend's submissions would cast the case very widely and suggest that it raises a matter of broad and far-reaching principle. In our respectful submission, this case turns on quite limited particular facts. We have addressed at page 3, paragraph 4(f) of the outline, what the distinct facts in this case are: a beneficiary who knew of the intended bequest and of the nature and extent of that bequest; a plain appreciation by the solicitor in question of the identity of the beneficiary; and a certain consequence if the solicitor were to be in error about the preparation of the will, provided the will remained in force.

In that situation, in our respectful submission, the case is a relatively narrow one and is to be seen as an incremental development in a predictable factual situation.

DAWSON J: Incremental to what?

MR BAIN: Incremental, your Honour, to what has been said in this Court in Burnie, and in Gala v Preston, incremental as to matters of policy so far as Bryan v Maloney is concerned, and as pointed out by - - -

DAWSON J: What do you rely on as establishing the duty?

MR BAIN: The circumstance, your Honours, that there was a necessary appreciation by the solicitor of the consequence, an immediate consequence, provided the will should remain in force, if the appropriate execution and witnessing did not occur.

McHUGH J: That has never been regarded as sufficient to create a duty of care, has it?

MR BAIN: Your Honours, in our respectful submission the identification of the fact that the failure to take proper care, failure to achieve the appointed task, will result in harm to a person, an identified person to a predictable extent, in our respectful submission, lies within the notions of proximity repeatedly discussed in this Court and on that basis - - -

DAWSON J: I do not understand. What do you mean by proximity?

MR BAIN: The proximity constituted by the relationship of solicitor, the intended beneficiary and the task which the solicitor was called upon to perform.

DAWSON J: But there is no relationship between the solicitor and the intended beneficiary. There is a contractual relationship between the solicitor and his client but that is as far as it goes, is it not?

MR BAIN: In our respectful submission, your Honours, a proximate relationship arises because of the solicitor's performing the role of the solicitor, appreciating that there is an intended beneficiary, an identified person - - -

DAWSON J: That is going a long way. One can understand when someone undertakes a responsibility or where there is reliance, but those are not present here.

MR BAIN: There is, as was said by his Honour the President below, a degree of reliance, in our respectful submission, being what was described in White v Jones as passive reliance, your Honours, that is the beneficiary's knowing of the intended bequest. We cannot take it further than that as regards reliance, of course, your Honours.

DAWSON J: Really what your client is complaining about are the provisions of the Wills Act or whatever the legislation is called, requiring a will to be attested in a particular manner. That is their complaint, is it not?

MR BAIN: That is part of the complaint, your Honour. It is more than that, in our respectful submission, because the complaint here is that the original plaintiff, the respondent, was a person who had been told of the intended bequest; of course was taking a benefit if the will should remain in force; was likely to suffer the loss of that benefit if the Wills Act were not complied with, as it was not; and at least had the expectation that provided the testatrix's known intention held firm, that there would be some benefit passed to her in due course.

TOOHEY J: What is the significance of being told, Mr Bain? How does that fit into the elements that go to make up the cause of action?

MR BAIN: In our respectful submission, your Honour, it is a more distant factor, but a factor which would raise, at least as a matter of policy for the identification of a duty, the solicitors being required to achieve the task. That is, we concede, your Honours, one of the more distant features of it but it is a factor at least relevant to the question of policy in the case.

TOOHEY J: In putting it that way you do not appear to be using it as an aspect of reliance at all.

MR BAIN: We cannot submit that the respondent did not act or forbore from acting in any particular way because she knew. It has been described in some of the cases as a passive reliance. "Reliance" may not be a helpful word. It is the circumstance that the respondent was told promptly after the will had been supposedly executed of the testatrix's intention and of the fact that there was to be a benefit, which makes the case one in which, in our respectful submission, it is appropriate to identify the solicitor owing a duty of care.

DAWSON J: So you say it would be different, she would not recover if, in fact, she had not known?

MR BAIN: No, we do not make that submission, your Honour. We respectfully submit it is one of the factors to be taken into account. We do not submit that in another case on different facts - - -

DAWSON J: I thought you were putting it as being crucial.

MR BAIN: I apologise if it seemed so to the Court. I did not intend to put it as crucial. Answering your Honour Justice Toohey's question as to what we make of the factor, we identify it, with respect, as a factor which is of significance in this case on its facts. We do not make the submission, in answer to your Honour the presiding Judge, that absent that factor there would not be a duty in any other comparable case. So we do not submit that it is a crucial factor but we submit that it is a helpful factor, helpful for the respondent.

TOOHEY J: Mr Bain, we have not the pleadings, but it seems that this matter was fought solely on the basis of negligence.

MR BAIN: Yes, your Honour.

TOOHEY J: So that some of the questions that are canvassed in White v Jones being reference to some sort of contractual obligation was not raised.

MR BAIN: Was not raised.

DAWSON J: Or a transferred obligation, that was not raised?

MR BAIN: No, that was not raised before, your Honours. There is nothing equivalent to those matters explored by Lord Goff in White v Jones of that sort.

DAWSON J: But having regard to that decision and to some of the previous decisions of this Court a question does arise, does it not, in this case?

MR BAIN: We have to concede, of course, your Honours, that the question arises in the case whether, on facts in this case or closely similar, that is to say an intended beneficiary, an identified bequest and an appreciation by the solicitor of the consequences of failing to perform the allotted task, whether there is a duty and to what extent the disappointed beneficiary may be compensated. So we concede that the point is in existence.

However, your Honours, in our respectful submission, this is not a point which requires the Court's further comment for these reasons: there is a detailed and very closely reasoned unanimous judgment of the Court of Appeal which, save Bryan v Maloney decided subsequently but consistently with that, in our submission, draws together what this Court has said on a number of occasions concerning what may be regarded as a proximate relationship to found a duty.

DAWSON J: It sets it out. I do not know whether it draws together.

MR BAIN: In our respectful submission it identifies what the Court has said at least on those earlier occasions and proceeding, in our respectful submission, consistently with what the Court has said on the earlier occasions for Australia, it comes to what is an unremarkable result, in our submission. It is unremarkable because one can see readily the weight of judicial and academic support for the result and the line of reasoning in this case elsewhere. We, of course - - -

DAWSON J: When you say judicial support, you have a House of Lords decision which is 5:2. Certainly there is academic support. There is academic support for a lot of things which do not necessarily commend them to the Court.

McHUGH J: And you have a decision of the Full Court of Victoria to the opposite effect, Seale v Perry.

MR BAIN: There is a decision of the Full Court of Victoria to the opposite effect, your Honours, but the decision of the Full Court of Victoria seems to have proceeded on the footing that Robertson v Fleming was still the law. Now, this much at least, in our respectful submission, can be said of Robertson v Fleming, that it has not survived, on anyone's view, in White v Jones. None of their Lordships in White v Jones, not even the dissentients, saw fit to take stand on Robertson v Fleming. So, in our respectful submission, Seale v Perry must now be regarded as highly likely not to be followed by a Full Court in Victoria.

There is, of course, still Seale v Perry in existence and would govern in Victoria, we have to concede that, but in our respectful submission, and as we have mentioned in the written outline, Seale v Perry perhaps should first be dealt with by the Court of Appeal in Victoria. This Court, if there is a point to be considered by this Court in due course, may be assisted by the analysis of Seale v Perry, what underlay it, what may now be put in substitution for Robertson v Fleming, if anything, and what the result will be.

So whilst, of course, in answer to your Honour Justice McHugh, it has to be conceded that Seale v Perry remains the law in Victoria on this point, it must be seen, in our respectful submission, as highly likely, given the trend of authority, that Seale v Perry would be reconsidered at least by the Victorian court. It may or may not be that the Victorian court adheres to its position in Seale v Perry, or at least comes to the same conclusion as regards the absence of the duty in equivalent circumstances, but in our respectful submission that development should precede at least this Court's consideration of the point.

To come back to the question posed to me by your Honour the presiding Judge, so far as the point is concerned, the point is in existence but, in our respectful submission, there is no reason to doubt the correctness of the conclusions reached by the Court of Appeal, whether in terms of applying what has been said explicitly in this Court or in terms of applying, consistently with the judgments of this Court, some policy considerations. There is, in our respectful submission, no evident error in approach, having regard to the many significant authorities which this Court has pronounced in the area attending the Court of Appeal's judgment.

I trust we have answered your Honour the presiding Judge's question, perhaps too lengthily. The point is here, but in our submission, in short, the point does not presently need the Court's consideration, and because of the relatively narrow compass of the facts in the case this perhaps is not the appropriate vehicle for such consideration, at least until Seale v Perry has been addressed.

DAWSON J: In the House of Lords the decision was based - well, it was not based on proximity anyway, whatever else it was based upon. Here you suggest that the basis of the decision is proximity and that is something which, obviously, is capable of exploration in this Court, having regard to the two divergent approaches.

MR BAIN: It is capable of exploration, certainly, your Honours, and of course we have to concede - - -

DAWSON J: Perhaps it is appropriate to explore it, that is what I ought to have said.

MR BAIN: There, with great respect, we would differ from your Honour. In our submission the development of the law in this particular relatively limited area can proceed safely without the Court's present concern with this case and at least until the point where the Court of Appeal in Victoria should deal with Seale v Perry and, adhering to the result for whatever reasons, create a marked modern difference in approach. In our respectful submission, given Seale v Perry's age and the reasoning in it, whilst the point is in play, as we have repeatedly conceded to your Honours, Seale v Perry ought not be of great concern to the Court for the moment.

TOOHEY J: But if this decision was allowed to stand, Mr Bain, and does stand, what is it authority for?

MR BAIN: It is authority in Queensland for the proposition that an identified beneficiary who, by reason of solicitor's neglect in the formal requirements of a will, loses a benefit, an identified benefit, may sue the solicitor for the worth of that benefit.

DAWSON J: And the next incremental step will be an unidentified beneficiary, in the sense of a beneficiary who does not know of the bequest, a charity, who learns of it subsequently.

MR BAIN: That may well be suggested, your Honours. As to that, may we draw attention, of course conceding that there was a divergent approach in the majority in White v Jones, to what Lord Goff had to say concerning the questions of concern about how far acceptance of the duty and circumstances here may go.

DAWSON J: But is that not what proximity is all about?

MR BAIN: It is, your Honours. It is, but this, we respectfully submit, is of the class of case which was described by Sir Robin Cooke in Gartside, to which we have drawn attention in the outline, as being a relatively straightforward case and we would respectfully urge your Honours that there should not be concern about what may be seen as a relatively straightforward case because of some foreseeable troubles in more difficult cases in the future. Now, whilst - - -

McHUGH J: It may be a straightforward case if you start with the result, but if you start with principle, I do not know that it is a straightforward case at all.

MR BAIN: In our respectful submission it is straightforward to the extent that there is a limited factual context in which a duty has been identified, very limited and quite specific factual context. We make the submission in answer principally to what your Honour Justice Toohey and the your Honour the presiding Judge posed - - -

DAWSON J: But you cannot then find the principle to those facts, you just cannot, can you?

MR BAIN: Certainly others would seek to extend the principle to other facts or argue by analogy in other professional relationships, for example, we have to concede that, yes. In our respectful submission, however, so far as the use of this as authority is concerned, it is both practicable and reasonable for both trial judges and intermediate courts of appeal to deal with this authority in its terms, to judge its worth in those analogous situations and also, always of course, having regard to what this Court has said concerning the approach to the identification of a duty and compensation in the area of negligence in any event.

It will bind in Queensland in the instant facts. Beyond that it is argument by analogy or by extension. In our respectful submission, it is not a case which would have such - if we can put it bluntly - a ripple effect as to be of concern to the Court at the moment.

Unless we can assist your Honours with any other matters of concern, we would only be repeating the outline to advance further submissions. Those are the submissions for the respondent.

DAWSON J: Thank you, Mr Bain. We need not trouble you, Mr Keane. Despite the valiant efforts of Mr Bain, there will be a grant of special leave.

AT 11.37 AM THE MATTER WAS CONCLUDED