Armidale Dumaresq Council v Attorney-General (NSW) (No 1)

[2007] NSWSC 557

CITATION:	Armidale Dumaresq Council v Attorney-General (NSW) (No 1) [2007] NSWSC 557
HEARING DATE(S):	22/05/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	22 May 2007
DECISION:	Application for joinder allowed.
CATCHWORDS:	PROCEDURE [89]- Joinder and addition of parties- Proceedings relating to charitable trust- Charity for benefit of the public in a particular locality- Whether local interest group may be added as defendant- Attorney-General taking neutral stance- Held group has sufficient interest in subject matter of action to be joined.
LEGISLATION CITED:	Trustee Act 1925, s 81 Uniform Civil Procedure Rules 2005, Part 6 rule 24
CASES CITED:	Arakella Pty Ltd v Paton (2004) 60 NSWLR 334 Freeman v Attorney-General (NSW) [1973] 1 NSWLR 729 National Trustees Executors & Agency Co of Australasia Ltd v Attorney-General (Vic) [1973] VR 610 Perpetual Trustee Co Ltd v Godsall [1979] 2 NSWLR 785 Re Baker [1961] VR 641
PARTIES:	Armidale Dumaresq Council (P) Attorney-General for the State of New South Wales (D) Friends of the Old Teachers' College Armidale Inc (Applicant)
FILE NUMBER(S):	SC 5553/06
COUNSEL:	G Mahony (P) C Mantziaris (D) M Cashion SC (Applicant)
SOLICITORS:	Moin & Associates Pty Limited (P) I V Knight, Crown Solicitor (D) Henry Davis York (Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 22 May 2007

5553/06 – ARMIDALE DUMARESQ COUNCIL v ATTORNEY-GENERAL (NSW) (NO 1)

JUDGMENT

1 HIS HONOUR: This is an application under Part 6 rule 24 of the Uniform Civil Procedure Rules 2005 for joinder of the applicant, which is a corporation under the Associations Incorporation Act 1984, to become a party in these proceedings, which are basically for an order under s 81 of the Trustee Act 1925.

2 The trust concerned is a charitable trust which was set up in the 1930s to allow a valuable collection of paintings to be exhibited in the Armidale area. The general thrust of the application is that it is no longer financially viable to keep the whole collection in the Armidale area unless there is an infusion of funds and that the most appropriate way of having an infusion of funds is for one of the most valuable paintings to be sold as to one half to the Art Gallery of New South Wales. The funds being received will allow paintings to be continued to be exhibited in the Armidale area, including the valuable painting, for a viable period of the year. The Attorney-General neither consents to nor opposes that application.

3 The applicant, the Friends of the Old Teachers College, Armidale Inc, consists of people who appear to oppose the suggestion. They have a rather vague idea of how much money can be raised otherwise to keep the collection of paintings in the Armidale area and they wish their views to be considered by the Court.

4 The general rule when applying Part 6 rule 24 is that the public is not assisted by people becoming involved in other people's litigation just because the subject matter interests them. A fortiori is this the case where the plaintiff opposes the joinder as the plaintiff does in the instant case.

5 The rule suggests that if the Court considers that a person ought to have been joined or that a person's joinder is necessary, then the Court may order that the person be joined as a party.

6 There is no doubt at all that s 81 of the Trustee Act applies to charitable trusts as well as to ordinary trusts: see, for instance, Freeman v Attorney-General (NSW) [1973] 1 NSWLR 729. There is also no doubt that, as it is expressed in Tudor on Charities (Sweet & Maxwell, London, 2003) 9th ed p 398, the general rule is that all persons having any interest in the subject matter of an action relating to a charity within the jurisdiction of the Court shall be made a party to the proceedings.

7 When one looks at the actual cases on s 81 of the Trustee Act concerning charitable trusts, one finds that in the leading case, Freeman's case to which I have already referred, and Re Baker [1961] VR 641, the only parties were the trustees and the Attorney-General. However these are cases where the Court had before it people who were arguing the matter and where there was no clear local interest. For instance, in the Freeman case, the question was whether the Narrabri Bread Research Institute should be allied with the University of Sydney and funded in a particular way.

8 There are, however, a series of cases where, when s 81 is being considered, defendants who are interested in the outcome as beneficiaries have been joined, for instance, National Trustees Executors & Agency Co of Australasia Ltd v Attorney-General (Vic) [1973] VR 610. Also, there have been non-charity cases under s 81 where the judge has deliberately ordered that a representative of persons who might be interested as beneficiaries be added as a defendant: see, for instance, Arakella Pty Ltd v Paton (2004) 60 NSWLR 334. Another instance where the beneficiaries were added in a non-charitable case is Perpetual Trustee Co Ltd v Godsall [1979] 2 NSWLR 785.

9 Pulling all these strings together, it would seem to me that where one has a charity with a particular local focus and the Attorney-General is leaving it in the hands of the Court to decide and the charity is for the benefit of the public in that particular locality that the Court ought to examine the views of those in the locality who have strong feelings.

10 There is a limit to this. Those strong feelings should not be allowed to increase the costs nor to delay the matter unduly. However, despite what Ms Mahony for the trustees says, I cannot see how their intervention at this stage could delay the matter unduly. The applicant must, however, be responsible for its own costs and also for any increases in the costs caused as a result of its participation.

11 Accordingly, on condition that in any event the applicant is responsible for its own costs and will understand that it may be responsible for an order

for costs against it for any additional costs caused by its intervention, it may be added as a party.

12 On those conditions I order that the Friends of the Old Teachers College Armidale Inc be added as a second defendant.

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