Graham v Hall

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.