King v Philcox - [2015] HCATrans 50

[2015] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A26 of 2014

B e t w e e n -
GEORGE KING
Appellant
and
RYAN PHILCOX
Respondent

FRENCH CJ
KIEFEL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 10 MARCH 2015, AT 2.14 PM

MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR B.J. DOYLE, for the appellant.(instructed by Finlaysons Lawyers)

MR P.A. HEYWOOD‑SMITH, QC: If the Court pleases, I appear with MR G. STATHOPOULOS, for the respondent. (instructed by SE Lawyers)

FRENCH CJ: Yes, Mr Livesey.

MR LIVESEY: If the Court pleases, there are two points raised for determination on this appeal. The first is whether this Court should now recognise a common law duty to avoid causing mental harm caused by the hearing of news of the death of a family member who was not a parent or child and where there was no prior employment relationship or assumption of responsibility by the defendant. The second point concerns whether the requirement in section 53(1)(a) of the Civil Liability Act (SA) for:

present at the scene of the accident when the accident occurred –

is satisfied when the plaintiff sees the aftermath. If I might put the question of duty into its historical context, as with pure economic loss cases, pure mental harm cases have raised difficult questions concerning when a duty of care should or should not be recognised. In addition, they have also raised difficult questions about what matters in addition to reasonable foreseeability justify recognition of a duty of care at common law.

As with pure economic loss, there is exemplified in this area judicial caution. Four of those concerns were articulated by Justices Gummow and Kirby in Tame’s Case at paragraph 192. First, the problem that psychiatric illness is not objective and can give rise to problems with it being feigned or there being disputes amongst experts about its recognition. Second, there can be problems with litigation operating as a “disincentive to rehabilitation”. Third, full recovery can give rise to problems, or at least fears, of “indeterminate liability” and, fourth, recognition of liability in this area can give rise to what is regarded as an “unreasonable . . . burden on defendants”.

FRENCH CJ: Do you start with a proposition about the extent of the common law duty of care unaffected by the statute?

MR LIVESEY: No, my submission is that one starts with section 33, but the resolution of 33 is necessarily informed by the common law and, in particular, this Court’s consideration of the common law in both Tame and Gifford’s Case as well as more recently in Wicks. But the considerations which informed recognition of the duty of care in those cases, or the rejection of a duty of care in those cases, will likewise become relevant when determining whether a duty of care is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Philcox

Details

AGLC: King v Philcox [2015] HCATrans 50
Case: [2015] HCATrans 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between King and Philcox concerning the interpretation of a will. The primary issue revolved around whether a specific bequest of shares in a company, which had undergone a significant corporate restructure prior to the testator's death, should be satisfied by the shares held in the restructured entity or by the original shares.

The High Court was required to determine the proper construction of the will, specifically whether the testator's intention, as expressed in the will, was to bequeath the shares in the original company or the shares in the successor entity that had replaced the original company following a demerger. This involved considering the principles of testamentary intention and the effect of corporate reorganisations on specific bequests.

The Court reasoned that the testator's intention was paramount and that the will should be construed in a manner that gave effect to that intention. Applying established principles of will construction, the Court found that the specific bequest of shares in the original company should be interpreted as referring to the shares in the restructured entity that represented the testator's interest in the original company's business. The Court held that the demerger did not extinguish the subject matter of the bequest but rather transformed it into a different form, which the testator would have intended to be the subject of the gift. The appeal was dismissed.

Orders