King v Philcox - [2014] HCATrans 253

[2014] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A12 of 2014

B e t w e e n -
GEORGE KING
Applicant
and
RYAN PHILCOX
Respondent
Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 NOVEMBER 2014, AT 10.52 AM

MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR B.J. DOYLE for the applicant. (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 on this application. The first point concerns the existence and determination of a duty at common law to avoid causing mental harm caused by receiving news about the death of a family member in a motor accident. This case does not contain any of the special features which we have seen in cases such as Annetts, where there was an assumption of responsibility, or in Gifford, where there was a prior employment relationship. This case represents an opportunity for the Court to provide guidance on the interplay between the common law and the Ipp reform in South Australia, section 33.

FRENCH CJ: What do you say to the point that ultimately this is about the interaction of a particular statute, a South Australian statute with the common law, and that it does not flow over into other areas?

MR LIVESEY: Section 33 has counterparts around Australia. They are broadly ‑ ‑ ‑

FRENCH CJ: But not identically worded, are they?

MR LIVESEY: Very largely identically worded. There is a variation in Queensland which is not the same, and there is a subtle variation in the Northern Territory where two of the four circumstances are not repeated, but in large measure, a section 33 provision – that is to say, the duty provision – is replicated around Australia. Unlike Wicks’ Case, Wicks’ Case being a case decided on the statutory limitation, this is a case which provides an opportunity to determine the duty question and the interplay between the common law and the Ipp reform.

The second point is a South Australian point. It concerns the proper meaning of section 53 which restricts liability for mental harm. Despite the clear recognition of the South Australian Parliament of an acceptance of Jaensch v Coffey, which itself was a South Australian case, and the imposition of two hurdles - one hurdle being involvement in the accident and associated with involvement in the accident is a bystander provision, that is to say, presence at the scene where the accident occurs; the second hurdle in South Australia is the involvement of a parent, spouse or child - it was in that latter sense that the South Australian Parliament recognised the result in Jaensch…

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 [2014] HCATrans 253
Case: [2014] HCATrans 253
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 court was required to determine the proper construction of the will, specifically whether the testator's intention was to bequeath the specific shares as they existed at the time of the will's execution, or as they were constituted at the time of death, given the intervening corporate changes. This involved an analysis of the principles governing the ademption of specific bequests when the subject matter of the bequest has been altered or replaced.

The High Court held that the bequest of shares was specific and that the corporate restructure had fundamentally altered the nature of the shares. Applying the principle that a specific legacy fails if the subject matter is not in existence at the time of the testator's death in the form in which it was bequeathed, the court found that the original shares had been replaced by new shares in the restructured company. Consequently, the specific bequest of the original shares had adeemed. The court therefore ordered that the appeal be dismissed.

Orders