Elder's Trustee & Executor Co Ltd v Registrar of Probates (SA) [1917] HCA 24; (1917) 23 CLR 169 (7 June 1917)

HIGH COURT OF AUSTRALIA

Elder's Trustee and Executor Company Limited Appellants; and The Registrar of Probates for South Australia Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

7 June 1917

Isaacs, Powers and Rich JJ.

Sir Josiah Symon K.C. and Piper K.C. (with them Norman), for the appellants.

Cleland K.C. (with him Hicks), for the respondent.

Piper K.C., in reply.

The judgment of the Court, which was read by Isaacs J., was as follows:—

June 7

Isaacs, Powers and Rich JJ.

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 administration with or without the will annexed" are to be limited to "estates" within the meaning of the Administration and Probate Acts 1891 to 1914, or extend also to property outside South Australia 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 Administration 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 Succession 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 "expressions 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. It 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 other parts of the world. In such a case the fee would amount to more than the property covered by the probate.

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

The 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 Probate 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-contentious 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 for a 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-contentious business. It is important to see what kind of payments 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. 6d.; £50 to £100, 10s.; £100 to £200, 15s.; £200 to £300, £1 10s.; £300 to £500, £2 10s.; £500 to £700, £3; £700 to £1,000, £4; £1,000 to £2,000, £5; £2,000 to £5,000, £6; £5,000 and upwards, £7. There the Legislature stopped—apart from additional special fees for special additional services. It is manifest that the graduation 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 at a maximum of £7 while the other advances automatically and indefinitely according to the value of the estate. Had the judicial scale proceeded, for instance, to extend the statutory scale to (say) £14,000 advancing £1 for every £3,000 as in the statutory limits £2,000 to £5,000, so as to make the maximum fee £10, no one could have contended that the limits of power had been passed.

The real objection, then, must be that the actual amount charged in some large estates is so great as to be beyond the bounds of reason when regarded as a Court charge 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. It 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. Wilson[2] and Widgee Shire Council v. Bonney[3], that principle was accepted as the test. In The King v. Broad[4] 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 Probate Amendment Act 1904, sec. 12) to entrust to the Judiciary the power of reconsidering the matter, and to "amend, alter, or vary the" parliamentary "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 though Parliament has met constantly for over twelve years since, and though the rule has been in constant operation during that time, Parliament has never interfered. It is even stronger than the case of a by-law or a rule that slumbers unnoticed. It has, so to speak, been in daily operation, and, in those circumstances, it is a heavy burden on those who ask the Court to say that notwithstanding the combined opinions of the South Australian Judiciary and Executive, 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 a connection. Every Act must, of course, be construed according to its own language, read by the light of its surrounding circumstances. So far as those circumstances consist of the communal circumstances of this State, the long continued sanction of all branches of Government is extremely powerful.

But if, as to principle, we look for precedent outside South Australia, we find it in England. In Mortimer on the Law and Practice of the Probate Division (1911), at pp. 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. (where application is not personal) and £22 9s. 6d. and £39 8s. 6d. (where it is personal) respectively. Then follows the statement that "for every additional £100,000 or any fractional part of £100,000 a further and additional fee of" £3 2s. 6d. or £4 13s. 6d. (non-personal application) and £1 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. 69 may be £200, and is calculated at the rate of 2s. for every £100 of the amount raised by sale or mortgage.

There is, therefore, no rigid principle which entitles the appellants to a judicial determination that the rule is ultra vires; and, having regard to the considerations already stated, and to the further consideration that Parliament can at once declare its will, if it be as asserted by the appellants, we find ourselves unable to arrive at the conclusion that the extremely wide and elastic terms of the power have been exceeded. Parliament always has it in its power to amend, and at the same time preserve, such other part of the rule as it thinks fit, and also to prevent questions arising as to past payments. 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 accuracy of the position contended 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 by declaring that probate do issue upon payment of £222 2s. 6d.

Solicitors for the appellants, Bakewell, Stow & Piper.

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

[1] 24 L.J.C.P., 26, at p. 28.

[2] [1906] HCA 77; 4 C.L.R., 785.

[3] [1907] HCA 11; 4 C.L.R., 977.

[4] (1915) A.C., 1110, at p. 1122.