Elder's Trustee and Executor Company Limited v Registrar of Probates (SA) [1917] HCA 24

are ultra vires or not is whether the charges are in all orsome cases so un- - Wi°h99-

sonably great as to lead to the conclusion that Parliament could not have

Rules of the Supreme Court of South Australia of 23rd December 1904, by the Judges under the power conferred upon them by sec. 112 of the inistration and Probate Act 1891 and sec. 12 of the Administration and Amendment Act 1904, and all other powers thereunto enabling them, ided in reference to " probates or letters of administration with or 'the will annexed," that "fees shall be paid at the rate of 5s. for £100 or fractional part of £100 on the net value of the estate, as shown he accounts and statements required to be filed under the provisions of the and Succession Duty Act 1876, or the Succession Duties Act 1893,

Held, that the expressian "the estate" is limited to estates with meaning of the Administration and Probate Acts and does not property outside South Australia which by virtue of sec. 7 of the Suc Duties Act 1893 is made subject to duty.

Decision of the Supreme Court of South Australia varied.

James Harvey, who died in South Australia on 2nd Decemb 1915 and was domiciled there, by his will appointed the Elde Trustee and Executor Co. Ltd. his executors, and probate of 1 will was granted to them. Pursuant to the Succession Duties 1893 they filed accounts and statements showing the value o testator's estate, and the accounts were (subject to a question a the allowance of a deduction of the Federal estate duty amounti to £13,518 13s. 8d.) approved by the Registrar. These accow showed that the net value of the estate was £117,756 15s, That amount did not include the sum of £13,518 13s. 8d. abo referred to; but it included a sum of £30,043 6s. 3d., being the val of the personal estate of the testator situated out of South Austra The Registrar of Probates refused to issue probate unless there v paid a fee of £328 5s., being 5s. for every £100 or fracti part of £100 on £131,275 9s. 7d., the total of the above menti sums of £117,756 15s. 11d. and £13,518 13s. 8d. The execute thereupon moved the Supreme Court for an order that the Ri should issue the probate upon payment in lieu of the fee of £328! of a fee of £5 or, in the alternative, of a fee of £219 10s., bi 5s. for every £100 or fractional part of £100 on £87,713 9s. 8 the net value of the estate in South Australia only, Certain oth fees amounting to £2 12s. 6d. were also claimed by the Registrs

and were admitted to be payable. The motion was heard |

From that decision the executors, by leave granted by the Sup! Court, now appealed to the High Court. Other facts are stated in the judgment hereunder.

Sir Josiah Symon K.C, and Piper K.C. (with them Norman), for the appellants. The rule of 23rd December 1904 fixing the fee

5s. for each £100 or part thereof is ultra vires. A fee charge for services rendered. The fees imposed by the Judges rein the case of large estates so great that they have no relation to value of the services rendered. The value of the estate is taken the standard of the charge, and not as the measure of the services ed. The charge is in effect a tax and not a fee.

he estate the value of which is the measure of the tax is the ute covered by the probate or letters of administration, that is, e estate in South Australia. The only power to make rules sing fees is that conferred by sec. 112 of the Administration Probate Act 1891 and sec. 12 of the Administration and Probate mt Act 1904, and none is conferred by the Succession Duties 1893. [Counsel referred to Dicey's Conflict of Laws, p. 316; missioner of Taxes (Vict.) v. Currie (2)].

and K.C. (with him Hicks), for the respondent. The amount

ring the power. See Institute of Patent Agents v. Lockwood The fact that 2 heavier burden is thrown on large estates than 'small estates does not show that the fees are invalid. In many Parliament has imposed fees which cannot be said to be pro- nate to the services rendered, for example, Real Property Act Insolvent Act 1886, Local Courts Act 1886, Companies Act 2, Licensing Act 1908. As to the other point, the Succes- m Duties Act 1893 has given to the words "the net value e estate" an artificial meaning, namely, the value of all

ith Australia, The Judges could adopt that or any other basis culating the amount of the fees. Parliament has a super- power and could have vetoed these rules if it chose. ..

1915. A.C., 1110, at p. 1122. (2) 21 G.LLR., 157, at p. 164.

• (3) (1894) A.C., 347, at p. 355.

Exper's 'TRUSTEE AND EXxEcuror Co. Lrp. v. REGISTRAR or PRopaTEs (S.A.).

The judgment of the Courr, which was read by Isaacs J. as follows : -

Two questions present themselves for decision. One is a q of construction, the other is one of power.

The first is whether the words "the estate December 1904 relating to fees for "* probates or letters of ai tration with or without the will annexed" are to be limited " estates' within the meaning of the Administration and Pi Acts 1891 to 1914, or extend also to property outside South At tralia which by virtue of sec. 7 of the Succession Duties Act 18 made the subject of duty. The rule in question was professe made by the Judges in pursuance of the powers of the Admin tion and Probate Act, and, although the words are added " andi i other powers us hereunto enabling," there is no such power cont

The only ground for alleging the more extended meaning i: reference to accounts and statements required to be filed under t Succession Duties Act. But those accounts and statements, h by sec. 9 of that Act are required to be filed by the " administrator " (which expression, by the interpretation section, includes "executor " or receiver of the property of a deceased person), 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 case the expression "' the estate" in the collocation in which it is found refers unmistakably to the "estate" for the purposes o the Administration and Probate Act. There can be no doubt what "estate " means under that Act (sec. 5) ; and then by see. 40 of Acts Interpretation Act 1915 (No. 1215) it is provided that " ex sions used in any regulation, rule, or by-law, made under, or by i of, any Act, shall, unless the contrary intention appears, have' same respective meanings as in such Act." From the standpoint reasonableness - even if the matter were doubtful - the answer plain. It could hardly be supposed that the intention was to m South Australian estate of £100 pay as if it were one of £50,0

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 lidity is challenged on the ground that it imposes not a fee but a tax. Sec. 112 of the Administration and Probate Act empowers e Court to make rules for, among other things, "regulating . fees payable on all proceedings so far as regards common form 'iness," that is, as defined by sec. 4, " non-contentious business " obtaining probate and administration. The argument is that tule requiring a fee of 5s. per centum of value of the " estate " is, the face of it, not a "fee" within the legislative meaning of 112. A "fee" has been defined by Maule J. in Bloor v. Huston (1) as "a sum of money paid to a person fora service done by him : y another." A "tax" in the sense suggested here is an impost The first duty of a Court in construing a word in a document is ) look at the document in which it is used, and, if necessary, the ole document. Parliament int the Third Schedule itself enacted the first place that certain "fees" should be taken in non- ntious business. It is important to see what kind of payments directed under the name of " fees." It enacted in every case a d sum; but graduated the fees according to the value of the to a stated amount. Taking the higher scale, namely, for 8 of administration, the fees were as follows: Up to £50, 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, ; £1,000 to £2,000, £5 ; £2,000 to £5,000, £6; £5,000 and upwards, There the Legislature stopped - apart from additional special for special additional services. It is manifest that the gradua- | was measured by the value of the estate, and therefore that neiple cannot be regarded as foreign to the legislative conception probate fee. The only real difference between the statutory nd the judicial scale is this, that the former stops at a maximum while the other advances automatically and indefinitely

H.C. or A. according to the value of the estate. Had the judicial seale pro- Be we ceeded, for instance, to extend the statutory scale to (say) £14,000 Exper's advancing £1 for every £3,000 as in the statutory limits £2,000 to aad £5,000, so as to make the maximum fee £10, no one could have -

ee contended that the limits of power had been passed.

pe The real objection, then, must be that the actual amount charged : NGISTRAR ; or Pronatrs in some large estates is so great as to be beyond the bounds of reason

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 uléra vires. Tn the two cases in this Court referred to by Gordon J., Ferrier v. Wilson

accepted as the test. In The King v. Broad (3) 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 tl judicial conclusion that Parliament never intended to give authority - to make such a charge? "

Now, while Parliament enacted the Third Schedule scale as bein 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 checl 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. ' c

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

(1) 4 CLR., 785. (2) 4 GLR., 97. (3) (1915) A.C., 1110, at p. 1122.

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 ofa 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

the amount of the charge necessarily transgresses the limit which : _any reasonable man would put on the word "fees" in such 2 con-

its own language, read by the light of its surrounding circumstances. o far as those circumstances consist of the communal circumstances this State, the long continued sanction of all branches of Govern- ment is extremely powerful. But if, as to principle, we look for precedent outside South Aus- tralia, we find it in England. In Mortimer on the Law and Practice of the Probate Division (1911), at pp. 935-949, we find juch in common with the challenged rule. Fees in non-contentious business from the year 1874, as amended later, are as to ~eertain 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

ee Then, under the Judicature Rules, reference may be made to the hedule of Court fees in proceedings in the Chancery Division (as set out in the Annual Practice for 1917, at pp. 1780-1782). he fee No. 69 may be £200, and is calculated at the rate of 2s. for

Exper's 'TRUSTEE AND Executor Co. Lrp. v. RecisTRar

H.C. or A. to a judicial determination that thé rule is ultra vires; and, ha ke regard to the considerations already stated, and to the furth Euper's consideration that Parliament can at once declare its will, if it qeteee as asserted by the appellants, we find ourselves unable to arrive

Rxecor0® at the conclusion that the extremely wide and .lastic terms of the

v. power have been exceeded. Parliament always has it in its pow

REGISTRAR : or Propares to amend, and at the same time preserve, such other part of the rule (SA) as it thinks fit, and also to prevent questions arising as to past pa ments. A Court, if it declared the rule invalid, might find that it

had introduced a chaotic situation in the finances of the State.

cautious in accepting such a view. The order of the Supreme Court will be varied by declaring the probate do issue upon payment of £222 2s. 6d.

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. -