Elder's Trustee and Executor Company Limited v Registrar of Probates (SA)

[1917] HCA 24

23 C.L.R.] OF AUSTRALIA.

169

[HIGH COURT OF AUSTRALIA.]

ELDER’S TRUSTEE AND EXECUTOR COM­

1

.Ap p e l l a n t s ;

PANY LIMITED

................................... /

A N D

THE REGISTRAR OF PROBATES FOR SOUTH-j

R e s p o n d e n t .

A U S T R A L I A ............................................./

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA.

Probate-Fees—Rules of Court as to fees— Power of Court—Fees proportionate to

H. C. OP A.

value of estate— Measxire of fees— Estate in South Australia—Personal estate

1917.

out of South Australia— Administration and Probate Act 1891 (S.A.) {Xo. 537),

secs. 5, 112, Third Schedule—Administration and Probate Amendmenl Act

A d e l a id e ,

1904 (S.A.) (No. 854), sec. 12—Succession Duties Art 1893 (S.A.) (No. 507),

Jane

2.

secs. 7, 9—Acts Interpretation Act 1915 (S.A.) (No. 1215), sec. 40—Rules of

M e l b o d jin e ,

the Supreme Court of South Australia of 2‘

ird December 1904.

June 7.

VVlicre a power is given to a Court or Judges thereof to make rules regulating the fees payable for proceedings in the Court, the test of whether rules so

Isaacs,

Powers and

made arc ultra vires or not is whether the charges are in all or some cases so un­

Rich JJ.

reasonably great as to lead to the conclusion that Parliament could not have

intended to give power to make them.

Held, that rules fixing the fees payable for the grant of probate or letters of administration at 5s. for every £100 or fractional part thereof on the net value of the estate without any maximum fee were not unreasonable.

By Rules of the Supreme Court of South Australia of 23rd December 1904, made by the Judges under the power conferred upon them by sec. 112 of the Administration and Probate Act 1891 and sec. 12 of the Administration and Probate Amendment Act 1904, and all other powers thereunto enabling them, it is provided in reference to “ probates or letters of administration with or without the will annexed,” that ” fees shall be paid at the rate of 5s. for every £100 or fractional part of £100 on the net value of the estate, as shown in the accounts and statements required to bo filed under the provisions of the Probate and Succession Duty Act 1870, or the Succession Duties .4c< 1893, when such accounts and statements have been approved by the Registrar.”

170 HIGH COURT

[1917.

H.C. OP A.Held, that the expressicm “ the estate ” is limited to estates within the

1917.meaning of the Administration and Probate Acts and does not extend to property outside South Australia which by virtue of sec. 7 of the Succession

E l d e r s

Duties Act

1893 is m ad e su b je c t to d u ty .

T r u s t e e

„

Decision of the Supreme Court of South Australia varied.

E x e c u t o r

^

Co. L t d .

^jj(j^gTRAR A p p e a l from the Supreme Court of South Australia.

James Harvey, who died in South Australia on 2nd December ----- - 1915 and was domiciled there, by his will appointed the Elder’s Trustee and Executor Co. Ltd. his executors, and probate of the vdll was granted to them. Pursuant to the Succession Duties Act 1893 they filed accounts and statentents showing the value of the testator’s estate, and the accounts were (subject to a question as to the allowance of a deduction of the Federal estate duty amounting to £13,518 13s. 8d.) approved by the Registrar. These accounts showed that the net value of the estate was £117,756 15s. lid. That amount did not include the sum of £13,51^ 13s. 8d. above referred to ; but it included a sum of £30,043 6s. 3d., being the value of the personal estate of the testator situated out of South Australia. The Registrar of Probates refused to issue probate unless there was paid a fee of £328 5s., being 5s. for ever}" £100 or fractional part of £100 on £131,275 9s. 7d., the total of the above mentioned sums of £117,756 15“. lid . and £13,518 13s. 8d. The executors thereupon moved the Supreme Court for an order that the Registrar should issue the probate upon payment in lieu of the fee of £328 5s. of a fee of £5 or, in the alternative, of a fee of £219 10s., being 5s. for every £100 or fractional part of £100 on £87,713 9s. 8d., the net value of the estate in South Australia only. Certain other fees amounting to £2 12s. 6d. were also claimed by the Registrar, and were admitted to be payable. The motion was heard by Gordon J., sitting as a Full Court, who made an order dismissing the motion.

From that decision the executors, by leave granted by the Supreme Court, now appealed to the High Court.

Other facts are stated in the judgment hereunder.

Sir Josiah Symon K.C. and Piper K.C. (with them Norman), for the appellants. The rule of 23rd December 1904 fixing the fee

23 C.L.R.]

OF AUSTRALIA.

at 5s. for each £100 or part thereof is ultra vires. A fee

H. C. OF A.

1917.

is a charge for services rendered.

The fees imposed by the Judges

are in the case of large estates so great that they have no relation to

E l d e r ’s T r u s t e e

the value of the services rendered. The value of the estate is taken

AND

E x e c u t o r

as the standard of the charge, and not as the measure of the services

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rendered. The charge is in effect a tax and not a fee.

V.

R e g is t r a r

[Isaacs J. referred to The King v. Broad (1)].

OF P r o b a t e .s

(S.A.).

The estate the value of which is the measure of the tax is the estate covered by the probate or letters of administration, that is, the estate in South Australia. The only power to make rules imposing fees is that conferred by sec. 112 of the Administration and Probate Act 1891 and sec. 12 of the Administration and Probate Amendment Act 1904, and none is conferred by the Succession Duties Act 1893. [Counsel referred to Dicey's Conf,ict of Laws, p. 316 ; Commissioner of Taxes [Viet.) v. Currie (2)].

Cleland K.C. (with him Hicks), for the respondent. The amount of the fees is not an objection to their validity unless it is beyond anything that could have been contemplated by Parliament when conferring the power. See Institute of Patent Agents v. Lockwood (3). The fact that a heavier burden is thrown on large estates than on small estates does not show that the fees are invalid. In many Acts Parliament has imposed fees which cannot be said to be pro­ portionate to the services rendered, for example, Real Property Act 188G, Insolvent Act 1886, Local Courts Act 1886, Companies Act 1892, Licensing Act 1908. As to the other point, the Succes­ sion Duties Act 1893 has given to the words “ the net value of the estate ” an artificial meaning, namely, the value of all the property in South Australia and the personal property out of South Australia. Tlie Judges could adopt that or any other basis for calculating the amount of the fees. Parliament has a super­ visory power and could have vetoed these rules if it chose.

Piper K.C., in reply.

Cur. adv. vult.

(1) (li)ir>) A.C., 1110, at p. 1122.

(2) 21 C.L.R., 157, at p. 164.

(;}) (1894) A.C., 347. at p. 355.

HIGH COURT

[1917.

The judgment of the Co u r t , which was read by I saacs J., was as follows :—

Two questions present themselves for decision.

One is a question

of construction, the other is one of power.

The first is whether the words “ the estate ” in the rule of 23rd December 1904 relating to fees for “ probates or letters of adminis­ tration with or without the will annexed ” are to be limited to “ estates ” within the meaning of the Administration and Probate J u n e 7.Acts 1891 to 1914, or extend also to property outside South Aus­

tralia which by virtue of sec. 7 of the Succession Duties Act 1893 is made the subject of duty. The rule in question was professedly made by the Judges in pursuance of the powers of the Administra­ tion and Probate Act, and, although the words are added “ and of all other powers us hereunto enabling,” there is no such power contained in the Succession Duties Act.

The only ground for alleging the more extended meaning is the reference to accounts and statements required to be filed under the Sucx:ession Duties Act. But those accounts and statements, which by sec. 9 of that Act are required to be filed by the “ administrator ” (which expression, by the interpretation section, includes also “ executor ” or receiver of the property of a deceased person), are apparently intended to contain, and the present forms do in fact require them to contain, information enabling the office to see what the “ estate ” of the deceased for probate purposes consists of. In any case the expression “ the estate ” in the collocation in which it is found refers unmistakably to the “ estate ” for the purposes of the Administration and Probate Act. There can be no doubt what “ estate ” means under that Act (sec. 5) ; and then by sec. 40 of the Acts Interpretation Act 1915 (No. 1215) it is provided that “ expres­ sions used in any regulation, rule, or by-law, made under, or by virtue of, any Act, shall, unless the contrary intention appears, have the same respective meanings as in such Act.” From the standpoint of reasonableness—even if the matter were doubtful—the answer is plain. I t could hardly be supposed that the intention was to make a South Australian estate of £100 pay as if it were one of £50,000, merely because the deceased had £49,900 of personal property in

23 C.L.R.] OF AUSTRALIA.

173

other parts of the world. In such a case the fee would amount

H. C. O F A.

to more than the property covered by the probate.

1917.

As a matter of construction, therefore, the fee must be calcula ted on the value of the probate estate.

Tlie second question is as to whether the rule is ultra vires. Its validity is challenged on the ground that it imposes not a fee but a tax. Sec. 112 of the Administration and Prohate Act empowers the Court to make rules for, among other things, “ regulating . . . the fees payable on all proceedings so far as regards common form business,” that is, as defined by sec. 4, “ non-contentions business ” in obtaining probate and administration. The argument is that a rule requiring a fee of 5s. per centum of value of the “ estate ” is, on the face of it, not a “ fee ” within the legislative meaning of sec, 112. A “ fee ” has been defined by Maule J. in Bloor v. Huston (1) as “ a sum of money paid to a person fora service done by him to another.” A “ tax ” in the sense suggested here is an impost irrespective of service.

The first duty of a Court in construing a word in a document is to look at the document in which it is used, and, if necessary, the whole document. Parliament in the Third Schedule itself enacted in the first place that certain “ fees ” should be taken in non­ contentions business. It is important to see wliat kind of jiayments are directed under the name of “ fees.” It enacted in every case a fixed sum ; but graduated the fees according to the value of the estate to a stated amount. Taking the higher scale, namely, for letters of administration, the fees were as follows : Up to £50, 7s. fid. ; £50 to £100, lOs. ; £100 to £200, I5s. ; £200 to £300, £I 10s. ; £300 to £500, £2 10s. ; £500 to £7(X), £3 ; £700 to £1,000, £4; £I ,000 to £2,000, £5 ; £2,000 to £5,000, £fi ; £5,000 and upwards, £7. There the Legislature stopped—apart from additional special fees for special additional services. It is manifest that the gradua­ tion was measured by the value of the estate, and therefore that principle cannot be regarded as foreign to the legislative conception of a probate fee. The only real difference between the statutory scale and the judicial scale is this, that the former stops a t a maximum of £7 while the other advances automatically and indefinitely

(1) 24 L.J.C.P., 26, at p. 28.

HIGH COURT

[1917.

H. C. OF A. according to the value of the estate.

Had the judicial scale pro­

1917.ceeded, for instance, to extend the statutory scale to (say) £14,000

E l d e r ’sadvancing £1 for every £3,000 as in the statutory limits £2,000 to

T r u s t e e

AND

£5,000, so as to make the maximum fee £10, no one could have

E x e c u t o r

Co. L t d .

contended that the limits of power had been passed.

V.The real objection, then, must be that the actual amount charged

R e g is t r a r .

.

OF P r o b a t e s m some large estates is so great as to be beyond the bounds of reason

when regarded as a Court cliarge for performing its duties under the Act, and that therefore the Legislature could not have intended to commit to the Judges that power under the name of regulating fees. No other discrimen could be suggested. I t is the only legal ground upon which a Court could hold the rule ultra vires. In the two cases in this Court referred to by Gordon J., Ferrier v. Wilsov, (1) and Widgee Shire CouncAl v. Bonney (2), that principle was accepted as the test. In The King v. Broad (3) the Privy Council applied the same test. So here we have to ask ourselves : “ Is the amount of the charge, unlimited by any maximum, but advancing with the value of the property, so unreasonably great as to lead to the judicial conclusion that Parliament never intended to give authority to make such a charge ? ”

Now, while Parliament enacted the Third Schedule scale as being the scale which, so far it considered reasonable, it has determined (sec. 112 and Administration and Prohate Amendment Act 1004, sec. 12) to entrust to the Judiciary the power of reconsidering the matter, and to “ amend, alter, or vary th e ” parhamentary “ scale,” subject always to sub-sec. 2 of sec. 112. That sub-section requires also the affirmative consideration and approval of any suggested judicial alteration by the executive Government. That is the first check. Then Parliament reserves to itself the power, by mere resolution of either House within the time limited, to annul the whole or any portion of the rules.

The rule in question was made on 23rd December 1904—only a month after Parliament had last considered and expressed its views on the judicial powers of amending the parliamentary scale ; the Governor’s approval was given on 29th December 1904, and

(1) 4 C.L.R., 785.

(2) 4 C.L.R., 977.

(31 (19151 A.C., 1110, at p. 1122.

23 C.L.R.] OF AUSTRALIA.

175

though Parliament has met constantly for over twelve years since, H. C. o f a .

and though the rule has been in constant operation during that time,

Parliament has never interfered.

It is even stronger than the case

E l d u b ’s T r u s t e e

of a by-law or a rule that slumbers unnoticed. I t has, so to speak,

AND

E x e c u t o r

been in daily operation, and, in those circumstances, it is a heavy

Co. L t d .

burden on those who ask the Court to say that notwithstanding the

V.

combined opinions of the South Australian Judiciary and Executive, o p P r o b a t e s of this State, the long continued sanction of all branches of Govern­ ment is extremely powerful.

and the apparent acquiescence of Parliament itself in that opinion,

the amount of the charge necessarily transgresses the limit which

any reasonable man would put on the word “ fees ” in such e con­

nection. Every Act must, of course, be construed according to

its own language, read by the light of its surrounding circumstances.

But if, as to principle, we look for precedent outside South Aus­ tralia, we find it in England. In Mortimer on the Law and Practice of the Probate Division (1911), at pji. 935-949, we find much in common with the challenged rule. Fees in non-contentious business from the year 1874, as amended later, are as to certain services fixed by a graduated scale of effects sworn from under £5 up to £500,000, and in the columns “ Probate under Seal ” and “ Letters of Administration under Seal ” there is a constantly advancing charge up to £43 8s. 9d. and £53 18s. 3d. (ivliere application is not personal) and £22 9s. Gd. and £39 8s. 6d. (where it is personal) respectively. Then follow’s the statement that “ for every additional £100,000 or any fractional part of £100,000 a furtJier and additional fee of ” £3 2s. Gd. or £4 13s. Gd. (non-personal application) and £l 11s. 3d. (for probates) and £2 7s. (for administration) (personal). That is for the Principal Registry. There are similar fees in the District Registries. ‘

Then, under the Judicature Rules, reference may be made to the Schedule of Court fees in proceedings in the Chancery Division (as set out in the Annual Practice for 1917, at pp. 1780-1782). The fee No. G9 may be £200, and is calculated at the rate of 2s. for everv £100 of the amount raised by sale or mortgage.

There is, therefore, no rigid principle which entitles the appellants

170 HIGH COURT

[1917.

H. C. OF A.

to a judicial determination that the rule is ultra vires ; and, having

1917.

regard to the considerations already stated, and to the further

E l d e r ’sconsideration that Parliament can at once declare its will, if it be

T r u s t e e

ANDas asserted by the appellants, we find ourselves unable to arrive

^ ô T td^ at the conclusion that the extremely wide and^elastic terms of the i’- power have been exceeded. Parliament always has it in its power

R e g is t r a r

.

OF P r o b a t e s to amend, and at the same time preserve, such other part of the rule ( S ^ . thinks fit, and also to prevent questions arising as to past pay­ ments. A Court, if it declared the rule invalid, might find that it had introduced a chaotic situation in the finances of the State. No doubt, if it felt convinced of the accurac}" of the position con­ tended for, it would have to do its duty regardless of consequences. But the possibility referred to compels a Court to be extremely cautious in accepting such a view.

The order of the Supreme Court will be varied by declaring that the probate do issue upon payment of £222 2s. 6d.

Each party has succeeded on a substantial point, and therefore we say nothing about costs of this appeal. We think there should be no costs to either party to the motion in the Court below.

Order appealed from varied b/j declaring that probate do issue upon payment of £222 2s. fid.

Solicitors for the appellants, BaJcewell, Stow & Piper.

Solicitor for the respondent, F. W. Richards, Crown Solicitor

for South Australia.

B. L.