Reported Decision: 67 NSWLR 135
(2006) Aust Torts Reports 81-857
Court of Appeal
CITATION: Graham v Hall & 1 Or [2006] NSWCA 208 HEARING DATE(S): 02/08/06
JUDGMENT DATE:
13 September 2006JUDGMENT OF: Giles JA at 1; Ipp JA at 2; McColl JA at 117 DECISION: (1) Appeal by Mr Graham is dismissed. (2) Mr Graham to pay Mr Gelin's costs of the appeal. (3) Both cross-appeals are dismissed with no order as to costs. CATCHWORDS: NEGLIGENCE - respondent was a joint owner of a home - respondent's signature forged on a registered mortgage - liability of witness who attested the forged signature - witness was a justice of the peace - whether witness owed a duty of care to the respondent - Hill v Van Erp (1997) 188 CLR 159 applied - whether duty of care was breached - causation under s 5D of the Civil Liability Act 2002 (NSW) - whether witness immune from action under s 135 of the Justices Act 1902 (NSW) - whether attesting the forged signature was an act done "maliciously and without reasonable and probable cause" within the meaning of s 135 - apportionment of liability. D LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 5D
Justices Act 1902 (NSW), s 135
Justices of the Peace Act 2002 (NSW), s 8
Legal Profession Act 1987 (NSW)
Oaths Act 1900 (NSW), ss 18, 26(1)
Real Property Act 1900 (NSW), ss 36(1D), 42(1)CASES CITED: Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Hawkins v Clayton (1988) 164 CLR 539
Hill v Van Erp (1997) 188 CLR 159
Jones v Dunkel (1959) 101 CLR 298
Manly Council v Byrne & Anor [2004] NSWCA 123
Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254
Perre v Apand Pty Limited (1999) 198 CLR 180
Port Stephens Shire Council v Tellamist Pty Limited [2004] NSWCA 353
San Sebastian Pty Limited v The Minister (1986) 162 CLR 341
Spautz v Butterworth (1996) 41 NSWLR 1
Sullivan v Moody (2001) 207 CLR 562
Westpac Banking Corporation v Samson (1994) 6 BPR 13,790
Wickham v Marquis of Bath (1865) LR 1 Eq 17PARTIES: David Graham (Appellant)
Kaylene Joyce Hall (First Respondent)
Ben Ami Gelin (Second Respondent)FILE NUMBER(S): CA 40418/05 COUNSEL: D L Davies SC/S W Davis (Appellant)
Submitting Appearance (First Respondent)
J R J Lockhart (Second Respondent)SOLICITORS: I V Knight, Crown Solicitor (Appellant)
McIntosh, McPhillamy & Co (First Respondent)
Ebsworth & Ebsworth (Second Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 7/04 LOWER COURT JUDICIAL OFFICER: Williams DCJ LOWER COURT DATE OF DECISION: 29/04/05, 22/06/05
CA 40418/05
DC 7/04Wednesday 13 September 2006GILES JA
IPP JA
McCOLL JA
DAVID GRAHAM v KAYLENE JOYCE HALL & ANOR
FACTS
Mr and Mrs Hall lived near Bathurst and were joint owners of the family home. In early 2001, Mr Hall found himself in financial trouble. In order to pay off his debts, he decided to mortgage the…
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Details
- AGLC
- Graham v Hall [2006] NSWCA 208
- Case
- [2006] NSWCA 208
- Decision Date
CaseChat Overview and Summary
The case of *Graham v Hall* concerned a claim in negligence brought by Mr Gelin against Mr Graham. Mr Gelin was a joint owner of a home, and his signature was forged on a registered mortgage over that property. Mr Graham, a Justice of the Peace, had attested to the forged signature. Mr Gelin alleged that Mr Graham owed him a duty of care and had breached that duty, causing him loss. Mr Graham contended that he owed no such duty, or alternatively, that he was immune from suit under the *Justices Act 1902* (NSW).
The New South Wales Court of Appeal was required to determine whether Mr Graham, as a Justice of the Peace who attested a forged signature on a mortgage, owed a duty of care to the joint owner whose signature was forged. The court also had to consider whether, if such a duty existed, it had been breached, and whether causation of loss could be established under section 5D of the *Civil Liability Act 2002* (NSW). Finally, the court had to decide whether Mr Graham was immune from liability under section 135 of the *Justices Act 1902* (NSW), which provides a defence for acts done maliciously and without reasonable and probable cause.
The Court of Appeal, applying the principles established in *Hill v Van Erp*, held that Mr Graham did owe a duty of care to Mr Gelin. The court reasoned that the role of a Justice of the Peace in attesting signatures on important documents like mortgages carried with it a responsibility to take reasonable care to ensure the identity of the signatory. The attestation was not a mere formality but a representation that the signatory was who they purported to be. The court found that Mr Graham had breached this duty of care. Furthermore, the court determined that Mr Graham was not immune from suit under section 135 of the *Justices Act 1902* (NSW) because his actions, in attesting the forged signature without proper verification, did not meet the threshold of being done "maliciously and without reasonable and probable cause." Causation was also established.
The appeal by Mr Graham was dismissed, and he was ordered to pay Mr Gelin's costs of the appeal. The cross-appeals were also dismissed, with no order as to costs.
The New South Wales Court of Appeal was required to determine whether Mr Graham, as a Justice of the Peace who attested a forged signature on a mortgage, owed a duty of care to the joint owner whose signature was forged. The court also had to consider whether, if such a duty existed, it had been breached, and whether causation of loss could be established under section 5D of the *Civil Liability Act 2002* (NSW). Finally, the court had to decide whether Mr Graham was immune from liability under section 135 of the *Justices Act 1902* (NSW), which provides a defence for acts done maliciously and without reasonable and probable cause.
The Court of Appeal, applying the principles established in *Hill v Van Erp*, held that Mr Graham did owe a duty of care to Mr Gelin. The court reasoned that the role of a Justice of the Peace in attesting signatures on important documents like mortgages carried with it a responsibility to take reasonable care to ensure the identity of the signatory. The attestation was not a mere formality but a representation that the signatory was who they purported to be. The court found that Mr Graham had breached this duty of care. Furthermore, the court determined that Mr Graham was not immune from suit under section 135 of the *Justices Act 1902* (NSW) because his actions, in attesting the forged signature without proper verification, did not meet the threshold of being done "maliciously and without reasonable and probable cause." Causation was also established.
The appeal by Mr Graham was dismissed, and he was ordered to pay Mr Gelin's costs of the appeal. The cross-appeals were also dismissed, with no order as to costs.
Orders
Orders of the court
(1) Appeal by Mr Graham is dismissed. (2) Mr Graham to pay Mr Gelin's costs of the appeal. (3) Both cross-appeals are dismissed with no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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