Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales

[2024] NSWCA 30

116 NSWLR 314

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 Court of Appeal Bell CJ, Ward P and Leeming JA 12December 2023, 16 February 2024 EQUITY — Trusts and trustees — Charitable trusts — Creation by statute — When equity recognises a trust established by statute for a charitable purpose — Whether charitable trust extinguished by repeal of establishing statute — Necropolis Act 1867 (NSW) .

In 1868, by proclamation under the Necropolis Act 1867 (NSW), the Governor vested a portion of land at what is now known as Rookwood Cemetery in trustees of the Roman Catholic denomination “for the purpose of [the land] being used as a Burial Ground for burying the dead of such denomination”.

The present trustee and its manager joined the Attorney General and sought declaratory relief in the Equity Division about the existence and nature of a charitable trust. All parties agreed that a materially identical first instance decision concerning the Anglican portion of Rookwood Cemetery was wrongly decided, and the matter was referred to the Court of Appeal. It had been determined in the previous decision that, assuming the Necropolis Act 1867 (NSW) and proclamations made under it created charitable trusts in equity, such trusts were abolished when the replacement Act, the Necropolis Act 1901 (NSW), was repealed.

Held (granting declaratory relief in the form sought by the Attorney): (1) Whether a trust established by statute for a charitable purpose is one recognised in equity is a matter of statutory construction. It is necessary to consider whether the statute evokes the language of a trust in equity, and whether the statute read in context creates a bundle of rights, obligations, powers, privileges and immunities which constitutes a trust in equity. The alternative is that statute merely creates a “statutory trust” which is not a trust recognised in equity but depends for its existence on the statute continuing in force. The Necropolis Act 1867 (NSW) and proclamations made under it created charitable trusts recognised in equity. ([1]; [2]; [7], [158]–[218])

Attorney General v Eagar(1864) 3 SCR (NSW) 234; Council of the Municipality of Randwick v Rutledge(1959) 102 CLR 54;  [1959] HCA 63; State of Western Australia v Ward(2002) 213 CLR 1;  [2002] HCA 28 considered.

(2) Unlike a mere “statutory trust”, a charitable trust recognised in equity does not depend on the continuation of the statute which created it in order to continue, nor does repeal of that statute extinguish the trust. The charitable trusts created by the Necropolis Act 1867 (NSW) and proclamations made under it continued in existence notwithstanding the repeal of its replacement, the Necropolis Act 1901 (NSW). ([1]; [2]; [222]–[231])

Rookwood General Cemeteries Reserve Land Manager v Attorney General NSW[2022] NSWSC 1763 overruled.

Consideration of charitable trusts and “statutory trusts”, the interaction between statute and the law of charity, and the methods of creating and amending a charitable trust. ([20]–[23], [141]–[157], [221])

CASES CITED

The following cases are cited in the judgments:

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia(2014) 89 NSWLR 209;  [2014] NSWCA 402 Aid/Watch Incorporated v Commissioner of Taxation of the Commonwealth of Australia(2010) 241 CLR 539;  [2010] HCA 42 Ainsworth v Criminal Justice Commission(1992) 175 CLR 564;  [1992] HCA 10 Attorney-General v Brown(1847) 1 Legge 312 Attorney General v Eagar(1864) 3 SCR (NSW) 234 Attorney-General v Stewart(1817) 2 Mer 143;  35 ER 895 Attorney-General for New South Wales v Williams(1915) 19 CLR 343 Attorney-General for the State of Queensland; Ex rel Nye v Corporation of the Lesser Chapter of the Cathedral Church of Brisbane(1977) 136 CLR 353;  [1977] HCA 15 Aussie Airlines Pty Ltd v Australian Airlines Ltd(1996) 68 FCR 406 Australian Communist Party v Commonwealth of Australia(1951) 83 CLR 1;  [1951] HCA 5 Australian Competition and Consumer Commission v MSY Technology Pty Ltd(2012) 201 FCR 378;  [2012] FCAFC 56 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd(1998) 194 CLR 247;  [1998] HCA 49 Bathurst City Council v PWC Properties Pty Ltd(1998) 195 CLR 566;  [1998] HCA 59 Beechworth Land Estates Pty Ltd (admins apptd), In the matter of[2017] NSWSC 1447 Blue Derby Wild Inc v Forest Practices Authority[2023] TASSC 14 Bowman v Secular Society Ltd[1917] AC 406 Brisbane City Council v Attorney-General for Queensland[1979] AC 411 Cadia Holdings Pty Ltd v State of New South Wales(2010) 242 CLR 195;  [2010] HCA 27 Carr v Carr(2022) 21 ASTLR 511;  [2022] NSWSC 166 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth of Australia(2019) 268 CLR 524;  [2019] HCA 20 Central Bayside General Practice Association Ltd v Commissioner of State Revenue of the State of Victoria(2006) 228 CLR 168;  [2006] HCA 43 Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc[2019] NSWSC 519 Comcare v PVYW(2013) 250 CLR 246;  [2013] HCA 41 Commonwealth of Australia v BIS Cleanaway Ltd[2008] NSWCA 170 Council of the Municipality of Randwick v Rutledge(1959) 102 CLR 54;  [1959] HCA 63 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia(1999) 201 CLR 49;  [1999] HCA 67 Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89;  [2007] HCA 22 Fensom v Cootamundra Racecourse Reserve Trust[2000] NSWSC 1072 Fielding v Houison(1908) 7 CLR 393;  [1908] HCA 81 Fouche v Superannuation Fund Board(1952) 88 CLR 609;  [1952] HCA 1 Gett v Tabet(2009) 109 NSWLR 1;  [2009] NSWCA 76 Harmony — The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales[2020] NSWSC 1276 Hill v Zuda Pty Ltd(2022) 275 CLR 24;  [2022] HCA 21 Idylic Solutions Pty Ltd, In the matter of; Australian Securities and Investments Commission v Hobbs(2013) 93 ACSR 421;  [2013] NSWSC 106 IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd)(2004) 211 ALR 231;  [2004] FCA 1390 Incorporated Council of Law Reporting of the State of Queensland v Commissioner of Taxation of the Commonwealth of Australia(1971) 125 CLR 659;  [1971] HCA 44 Johnson v Johnson[2022] NSWSC 44 Kinloch v Secretary of State for India in Council(1882) 7 App Cas 619 Ku-ring-gai Municipal Council v Attorney-General(1954) 55 SR (NSW) 65 Lee v Lee(2019) 266 CLR 129;  [2019] HCA 28 Lee v New South Wales Crime Commission(2013) 251 CLR 196;  [2013] HCA 39 Legal Services Board v Gillespie-Jones(2013) 249 CLR 493;  [2013] HCA 35 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2)[2017] FCAFC 99 Macks, Re; Ex parte Saint(2000) 204 CLR 158;  [2000] HCA 62 Mann v Paterson Constructions Pty Ltd(2019) 267 CLR 560;  [2019] HCA 32 Maxwell v Murphy(1957) 96 CLR 261;  [1957] HCA 7 Mayor of Lyons v Advocate-General of Bengal(1876) 1 App Cas 91 Military Rehabilitation and Compensation Commission v May(2016) 257 CLR 468;  [2016] HCA 19 Monds v Stackhouse(1948) 77 CLR 232;  [1948] HCA 47 Mustac v Medical Board of Western Australia[2007] WASCA 128 National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2)(2019) 377 ALR 627;  [2019] FCA 1543 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)(2003) 133 FCR 190;  [2003] FCA 1263 Nottage, In re; Jones v Palmer[1895] 2 Ch 649 Obeid v Lockley(2018) 98 NSWLR 258;  [2018] NSWCA 71 Oil Basins Ltd v Commonwealth of Australia(1993) 178 CLR 643;  [1993] HCA 60 OXS Pty Ltd v Sydney Harbour Foreshore Authority[2016] NSWCA 120 Pharmacy Depot Hurstville Pty Ltd (in prov liq), In the matter of[2018] NSWSC 961 R v Maloney(1836) 1 Legge 74 Registrar of the Accident Compensation Tribunal v Commissioner of Taxation of the Commonwealth of Australia(1993) 178 CLR 145;  [1993] HCA 1 Robinson Helicopter Company Incorporated v McDermott(2016) 90 ALJR 679;  [2016] HCA 22 Rookwood General Cemeteries Reserve Land Manager v Attorney General NSW[2022] NSWSC 1763 Royal National Agricultural and Industrial Association v Chester(1974) 48 ALJR 304 Scholfield’s Will’s Trusts, In re[1949] Ch 341 Scottish Burial Reform and Cremation Society Ltd v Glasgow Corporation[1968] AC 138 Springfield v Duncombe[2017] NSWCA 137 State of New South Wales v Commonwealth of Australia(1975) 135 CLR 337;  [1975] HCA 58 State of New South Wales v Maxwell[2007] NSWCA 53 State of Western Australia v Ward(2002) 213 CLR 1;  [2002] HCA 28 Stewart v Atco Controls Pty Ltd (in liq)(2014) 252 CLR 307;  [2014] HCA 15 Strathalbyn Show Jumping Club Inc v Mayes(2001) 79 SASR 54;  [2001] SASC 73 Town Investments Ltd v Department of the Environment[1978] AC 359 Transport Workers’ Union of New South Wales v Toll Transport Pty Ltd[2023] NSWSC 16 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis(2007) 70 NSWLR 565;  [2007] NSWCA 117 Unions NSW v State of New South Wales(2023) 277 CLR 627;  [2023] HCA 4 University of New South Wales International House Ltd v University of New South Wales[2016] NSWSC 1709 Walker v Scott (No 1)[1825] NSWSupC 60;  [1825] NSWKR 6 Wallis v Solicitor-General for New Zealand[1903] AC 173 Wellington Capital Ltd v Australian Securities and Investments Commission(2014) 254 CLR 288;  [2014] HCA 43 Whicker v Hume(1858) 7 HLC 124;  11 ER 50 Williams v Attorney-General for New South Wales(1913) 16 CLR 404;  [1913] HCA 33 Wylde v Attorney-General for New South Wales(1948) 78 CLR 224;  [1948] HCA 39

TEXTS CITED

The following texts are cited in the judgments:

Bennett JM, Sir James Martin: Premier and Chief Justice of New South Wales (2005, Federation Press) Border R, “Thomas Hobbes Scott (1783–1860)” in Australian Dictionary of Biography, vol 2 (1967, Melbourne University Publishing) Campbell C, “Church and Schools Corporation” in Dictionary of Educational History in Australia and New Zealand (31 January 2018), Campbell E, “Rights of common in New South Wales: A history” (2007) 11(2) Legal History 243 Davis PD, “The 1866 controversy: Religious teaching in public schools” (1964) 7(3) Journal of Christian Education 83 Dietrich J and I Field, “Statute and theories of vicarious liability” (2020) 43(2) Melbourne University Law Review 515 French R, “Trusts and statutes” (2015) 39(2) Melbourne University Law Review 629 Jones G, History of the Law of Charity 1532–1827 (1969, Cambridge University Press) Lang AG, Crown Land in New South Wales (1973, Butterworths) McCulloch S, “The attempt to establish a national system of education in New South Wales, 1830–1850” (1959) 28(1) Pacific Historical Review 19 Murray L, “Cemeteries in nineteenth-century New South Wales: Landscapes of memory and identity” (PhD thesis submitted to the University of Sydney, August 2001) Murray L, “ ‘Modern innovations?’ Ideal vs. reality in colonial cemeteries of nineteenth-century New South Wales” (2003) 8(2) Mortality 129 Rolph D, J Eldridge and T Pilkington (eds), Australian Tort Law in the 21st Century (2024, Federation Press) Vines P and MS Donald (eds), Statutory Interpretation in Private Law (2019, Federation Press)

SUMMONS

This was an application for declaratory relief filed in the Equity Division of the Supreme Court which was referred to the Court of Appeal upon all parties contending that a first instance decision concerning materially identical circumstances (Rookwood General Cemeteries Reserve Land Manager v Attorney General NSW [2022] NSWSC 1763 (Parker J)) was wrongly decided.

MA Izzo SC, Z Heger and P Springthorpe, for the plaintiffs. H El-Hage SC and C Langford, for the defendant. Judgment reserved 16 February 2024 BELL CJ. 1 I agree with the orders proposed by Leeming JA and his Honour’s reasons. I also associate myself with the observations of the President as to the erudition and expedition of those reasons. WARD P. 2 I am indebted to Leeming JA for the comprehensive analysis of the issues in this matter. His Honour has referred to the cooperation of the parties to achieve a highly expedited hearing. Those are not the only ones to be commended for expedition in the resolution of this complex matter. Having considered carefully the history and issues exposed in the parties’ submissions and Leeming JA’s analysis, I agree with Leeming JA both that a charitable trust was created in respect of the Roman Catholic portion of Rookwood Cemetery and that it remains in existence today. From the end of February 2024, the proceeds held by the trustees will continue to be held on that charitable trust. I agree with the conclusion reached by his Honour that the purpose of the charitable trust is for the use of the Catholic Cemetery as a burial ground for burying the dead of the Roman Catholic denomination, as the Attorney General has contended. I agree with the declarations that Leeming JA has proposed. LEEMING JA. 3 These proceedings were commenced by summons filed on 10 November 2023, with the parties cooperating to achieve a highly expedited hearing. The summons was referred from the Equity Division to this court, in light of the contention advanced by all parties that Rookwood General Cemeteries Reserve Land Manager v Attorney General NSW [2022] NSWSC 1763 was wrongly decided. I acknowledge at the outset Parker J’s learned and illuminating judgment, which has considerably assisted my understanding of the history and issues. 4 The summons raises two issues. The first and principal issue is whether land set apart for the use as a Catholic burial ground at Rookwood Cemetery is held on charitable trust. The significance of the question is that legislation which comes into force on 29 February 2024 will extinguish the charitable trust at least insofar as concerns the land at Rookwood. However, if, as both the plaintiffs and the Attorney contend, the accumulated proceeds of the use of the land are also held on charitable trust, they will continue, so it is said, to be available to further the charitable purpose. Those proceeds are substantial. The first plaintiff’s financial report for the year ended 30 June 2023 discloses that it held “Other Financial Assets” of $160,408,993 comprising bills and term deposits and managed funds, noting:

“The purpose of Other Financial Assets is to generate real returns to satisfy future maintenance obligations when a cemetery is unable to generate sufficient income as all available burial plots are extinguished.”

5 On the other hand, if the proceeds are held on statutory trust consistently with the reasoning in Parker J’s judgment concerning the Anglican portion of Rookwood Cemetery, then on 29 February 2024 they will fall to beadministered in accordance with the Crown Land Management Act 2016 (NSW). 6 The second and secondary issue only arises if there is a charitable trust. It is whether the terms of that trust are confined to the burial of the dead of Roman Catholic denomination (as the Attorney contends), or whether they extend to use of land by the Roman Catholic denomination for burying the dead of any denomination (as the plaintiffs contend). Thus the Attorney says that where not all members of the same family are Catholics, the terms of the trust preclude non-Catholic members of the family from being interred in the Catholic portion of the cemetery, whereas the plaintiffs say that whether or not that is to occur is a matter for the trustee. (The legislation, proclamations and declarations used “Catholic” and “Roman Catholic” interchangeably, and in what follows I shall mostly refer to “Catholic”.)

7 It will be seen that on the view I take, the answer to the first issue turns principally on a point not finally determined by Parker J, namely, whether the Necropolis Act 1867 (NSW) and proclamations made pursuant to it created a charitable trust. I have concluded that they did. I respectfully depart from his Honour’s reasoning, and hold that none of (a) the subjection of the land to the Crown Lands Consolidation Act 1913 (NSW) in 1988, (b) the enactment of the Crown Lands Act 1989 (NSW), (c) the repeal of the Necropolis Act 1901 (NSW) by amendments in 2004 and 2009, and (d) the enactment of the Cemeteries and Crematoria Act 2013 (NSW) brought the original charitable trust to an end. Finally, I have concluded that the effect of the transitional provisions accompanying the enactment of the Crown Land Management Act 2016 will be to extinguish the trust insofar as it applies to the land at Rookwood, but not to affect the “Other Financial Assets” which will remain held on charitable trust. Those conclusions substantially accord with the position jointly advanced by the parties, and they are reached in part on the basis of a consideration of material which was not put forward to Parker J. 8 On the second issue, I have concluded that the charitable purpose was unchanged by the Necropolis Act 1901, despite that statute’s different wording. That conclusion accords with the position advanced by the Attorney, and is contrary to the submissions advanced by the plaintiffs. However, as Ward P observed during the hearing, it may be open to apply to the court to alter the charitable purpose. Nothing in these reasons should be taken as expressing a view as to the prospects of any such application. 9 The result is that declaratory relief in the form proposed by the Attorney and formulated at [258] should issue. 10 These reasons first deal with preliminary matters concerning the parties and the availability of relief. There follows an account of the complex legislative history. After summarising the reasoning of Parker J, I turn to the parties’ submissions and the analysis answering each of the questions identified above.

Parties

11 The nature of each plaintiff is a little unusual. Another unusual feature is the absence of any contradictor on the main issue.

The constitution and offices held by the plaintiffs

12 The second plaintiff, Catholic Cemeteries Board (CCB), was canonically established as a “public juridic person” on 23 October 1996. That signifies little for present purposes; “[r]ules of ecclesiastical law do not translateautomatically into contractual, trust or other secular rules”: Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 at [42]. But that does not prevent statute from taking a canonically constituted body and then creating rights and liabilities or conferring status by reference to that body, as was said in a very different context in Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at [230]. Section 4 read with Sch 2 of the Roman Catholic Church Communities’ Lands Act 1942 (NSW) constitutes various canonical bodies as bodies corporate that are capable of acquiring, holding and disposing of property. Section 2(2) authorises the Governor by proclamation to add to the list of bodies in that Schedule, and pursuant to that power a proclamation made on 8 January 1997 (published on p 45 of the New South Wales Government Gazette of 10 January 1997) inserted CCB into Sch 2. The effect of doing so was to create a new legal person recognised by secular law. 13 By notification published in the Gazette on 24 April 1997, CCB was appointed pursuant to s 95 of the Crown Lands Act 1989 to manage the affairs of the “Catholic Cemetery Trust, Necropolis”. The latter was a “reserve trust”, a concept to which I shall return. The gazettal identified the reserve of which the reserve trust was the trustee as “The Catholic portions of Rookwood Necropolis dedicated 7 April 1868 and 2 December 1887 as cemetery and extension thereto”. 14 “Catholic Cemetery Trust, Necropolis” had been created by the transitional provisions in the Crown Lands Act 1989, because when that Act commenced, there had been a corporate trustee holding office as trustee of a “reserve”, namely, “The Catholic portions of Rookwood Necropolis dedicated 7 April 1868 and 2 December 1887 as cemetery and extension thereto”. For most of the previous 120 years, the trustees of that land had been natural persons — the successors of the men purportedly appointed as trustees in 1867 and re-appointed in 1868, to which I shall come. However, a declaration dated 31 March 1988 declared the trustees of the Catholic Cemetery and their successors in office to be a corporation, named “Catholic Cemetery Trust, Necropolis”, pursuant to s 37Q of the Crown Lands Consolidation Act 1913. That had the consequence of engaging Sch 8 cl 4(1) and (2) to the Crown Lands Act 1989, which provided:

• “4

  Replacement of trustees by reserve trusts

• (1)

  On the commencement of Part 5, a reserve trust shall be taken to have been constituted under that Part as trustee of a reserve for which a trustee or trustees (‘the former trustee or former trustees’) held office immediately before that commencement.

• (2)

  If the former trustees were constituted as a corporation under a repealed Act, the corporate name of the reserve trust shall be the same as the corporate name of the corporation so constituted.”

15 Finally, by notification published in the Gazette on 15 May 2009, “Catholic Cemetery Trust, Necropolis” was dissolved pursuant to s 92(3) of the Crown Lands Act 1989, and a new reserve trust, the first plaintiff Catholic Metropolitan Cemeteries Trust (CMCT), was constituted under that name pursuant to s 92(2) and appointed trustee of the same land that “Catholic Cemetery Trust, Necropolis” had been trustee. The same gazettal appointed CCB to manage the affairs of CMCT. 16 Thus CMCT and CCB are bodies corporate, created by executive action pursuant to NSW statutes: one pursuant to a power to constitute the trustees ofa “reserve” as a body corporate and which was later deemed to be a “reserve trust”, the other by a statute creating bodies corporate to hold property associated with the Roman Catholic Church.

The nature of trusts, charitable trusts and “statutory trusts”

17 It is best to be clear at the outset about which “trusts” are, and which are not, legal persons. 18 Two things are fundamental. First, a trust as recognised in equity is not a legal person, but a “reserve trust”, constituted under the provisions of the Crown Lands Act 1989, including (by statutory deeming) the first plaintiff “Catholic Metropolitan Cemeteries Trust”, is a legal person. Secondly, the central question in this litigation as framed by the parties is whether CMCT is the trustee of a trust as recognised by equity, or alternatively the trustee of a “statutory trust”. 19 In equity, a trust is a relationship, not a legal entity. In Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth of Australia (2019) 268 CLR 524; [2019] HCA 20 at [24] Kiefel CJ, Keane and Edelman JJ said uncontroversially and axiomatically that “the trust is not a separate entity”; see also ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 at [15]–[18]. Both those decisions address the concept of a “trust creditor”, a label which illustrates one way in which legal language can mislead. That is because the creditor is not owed anything by “the trust” and there is no such legal person that the creditor may sue. Instead, the creditor must sue the trustee. The creditor may, but will not necessarily, be entitled to execute a judgment against trust assets. Thus, a “trust balance sheet” is in fact a presentation of the assets and liabilities of a trustee, namely (speaking generally), those assets of the trustee which are held on trust and those liabilities of the trustee in the discharge of which the trustee is entitled to have recourse to assets held on trust. 20 A charitable trust exists when a trustee owns property held for a purpose recognised by the law as charitable. Charitable trusts are also known as public trusts, in contradistinction with private trusts which are trusts for beneficiaries or objects (I mention this because critical passages in State of Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [238] and [240] deploy this terminology). 21 On the other hand, by dint of statute, a “reserve trust” and CMCT are legal persons. Both are constituted pursuant to NSW statutes as bodies corporate with distinct legal personalities. But that does not make either a “statutory trust” in the sense used in this litigation. 22 A “statutory trust” as that term has been used in this litigation is in contradistinction with a trust recognised in equity. Statute may make provision for a “trust”, and yet the result is not a trust recognised in equity. It is easy to see that the “reserve trusts” created pursuant to the Crown Lands Act 1989 are distinct from trusts recognised in equity: a reserve trust is a legal person, while a trust recognised in equity is a relationship. However, it is also possible for statute to make provision for legal relationships which are less dissimilar to trusts recognised in equity. Planning law provides a relatively common example, namely, a “trust” of land for public purposes. If those purposes are not purposes which are regarded as charitable, then it is clear that statute has created a “trust” (that is, a legal relationship) which is not a trust recognised inequity. By way of example, the council car park in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 was regarded as “land subject to a trust for a public purpose” for the purposes of determining its classification under local government legislation, in circumstances where it had mostly been acquired as a condition of the development consent granted to a shopping centre owner. One significant aspect of the reasoning in that appeal was that the High Court concluded that the car park answered the statutory description of “land subject to a trust for a public purpose” expressly on the basis that it was unnecessary to determine whether the use was a charitable purpose (see at [35], [39] and [65]), thereby making it clear that the “trust” in the statute was different from and broader than a charitable trust in equity. I shall return to what the joint judgment said under the heading “ ‘Trust’ in a non-technical sense” below. 23 There is thus exceptionally great scope for confusion in this case, because the body corporate that is a “reserve trust” is by dint of statute the trustee of the “reserve”, and while the “reserve” may by an easy metonymy be land which has been “reserved” under the Crown lands legislation, it may also have been land “dedicated” under the Crown lands legislation thereby giving it a different status. I shall return to the significance of land being “reserved”, “dedicated” and “set apart” (noting that the Catholic portion of the cemetery at Rookwood has had all of those verbs applied to it).

The absence of a contradictor on the principal issue

24 On the principal issue arising on the summons, there was no contradictor. However, there was a suggestion in the evidence that (contrary to the Attorney’s written submissions) the government did not accept that there was a charitable trust. This was raised at the outset of the hearing, for the Attorney might be joined in proceedings such as this in a number of capacities. The Attorney might represent the interests of the executive government (a recent example is Blue Derby Wild Inc v Forest Practices Authority [2023] TASSC 14 at [19]), or alternatively the Attorney might sue or be sued as responsible for looking after the public interest in charitable trusts. At general law, the Attorney-General is “the proper and … the only competent party to protect the charitable trusts and to seek to enforce them and to look after the interests of the public in those trusts”: Ku-ring-gai Municipal Council v Attorney-General (1954) 55 SR (NSW) 65 at 69–70, Bathurst City Council at [39]; and it “has always been recognised as the duty of the law officers of the Crown to intervene for the purpose of protecting charities and affording advice and assistance to the Court in the administration of charitable trusts”: Wallis v Solicitor-General for New Zealand [1903] AC 173 at 182, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [28]. 25 After a short adjournment to confirm his instructions, senior counsel for the Attorney advised that the State “respects the decision [of Parker J] as a decision of this Court, but it doesn’t seek to support its reasoning”. That was an entirely proper stance. It is decidedly wrong to think that the decision of a court has no effect in any other case, although from time to time that may be asserted. Decisions of superior courts have effect beyond the particular litigants, partly because, as an axiomatic aspect of the rule of law, like cases should be treated alike. A great deal of the history of the Anglican portion of Rookwood Cemetery mirrors that of the Roman Catholic portion, and indeedthe reason the summons was referred to the Court of Appeal was that a single judge would not lightly depart from Parker J’s reasoning as a matter of judicial comity, as explained by this court in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [281]–[295], as well as by French J in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52] and Martin CJ in Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38]–[46]. 26 There is no obstacle to this court issuing declaratory relief determining the legal status of the trust in the absence of a party contradicting the plaintiffs. It suffices for present purposes to adopt the distinction in Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 at [16], drawing upon what had been suggested by Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643 at 649; [1993] HCA 60, by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231; [2004] FCA 1390 at [47] and by Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414, to the effect that the requirement of a contradictor is satisfied if the party had a true interest in the plaintiff’s claim even if the party did not oppose the relief claimed. This has been repeatedly followed in this court at first instance, including in In the matter of Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs (2013) 93 ACSR 421; [2013] NSWSC 106 at [31] (Ward JA); In the matter of Beechworth Land Estates Pty Ltd (admins apptd) [2017] NSWSC 1447 at [25] (Gleeson JA); In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961 at [20]–[23] (Gleeson JA); Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 at [15]–[18] (Bell P); Johnson v Johnson [2022] NSWSC 44 at [44]–[46] (Ward CJ in Eq); Transport Workers’ Union of New South Wales v Toll Transport Pty Ltd [2023] NSWSC 16 at [32] (Mitchelmore J), and was recently endorsed by Edelman and Steward JJ in Unions NSW v State of New South Wales (2023) 277 CLR 627; [2023] HCA 4 at [63] and [90]. It is also consistent with what occurred in Fielding v Houison (1908) 7 CLR 393; [1908] HCA 81, which also concerned the entitlement to land endowed to benefit a church, and where the Attorney-General’s non-opposition on one of the main points did not stand in the way of declaratory relief. It is unnecessary to take this any further for present purposes for, although the Attorney agreed with the continuing existence of a charitable trust over the “Other Financial Assets”, the State had an evident interest in whether or not those assets were held for a charitable purpose. 27 The existence of power to grant declaratory relief is distinct from the exercise of discretion to do so. Despite the breadth of the discretion (as is clear from Allsop CJ’s account in National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) (2019) 377 ALR 627; [2019] FCA 1543 at [112]ff) it is not uncommon for litigants to seek declarations which lack utility, for example because they are divorced from a concrete dispute (Commonwealth of Australia v BIS Cleanaway Ltd [2008] NSWCA 170), because they are merely prefatory to an order for damages (OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 at [243]), or because they merely restate findings made against the defendant in a private law claim (Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2) [2017] FCAFC 99 at [3]). Generally, where “the Court’s declarationwill produce no foreseeable consequences for the parties”, declaratory relief should be refused: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; [1992] HCA 10. It is unnecessary to address the principles bearing upon the grant of declaratory relief because the present is a clear case. On the view I take it is necessary to determine the live dispute between the parties as to the terms of the charitable trust, which has important consequences for whether funds may be used for the purpose of interdenominational burials.

The statutes affecting the Catholic portion of Rookwood Cemetery

Overview

28 The starting point is the lengthy history of the land and the statutes affecting it. By way of overview, some 200 acres at “Haslem’s Creek” (now known as Rookwood) was granted in the 1830s to private ownership but was reacquired by “Her Most Gracious Majesty Queen Victoria” by deed executed and registered in August and September 1862. The purchase price was £2,000. The Necropolis Act 1867 authorised the Governor to dedicate the land to be used as a burial ground, and to set apart portions of it for various denominations. After a false start in 1866 and 1867, those steps were taken in 1868. A further 577 acres of land reacquired by the Crown were added in 1887, with the dedication occurring pursuant to the Crown Lands Act 1884 (NSW), and the additional land being vested in the various trustees pursuant to the Necropolis (Additional Areas) Act 1893 (NSW). The 1867 statute was replaced by the Necropolis Act 1901, a consolidating statute. Being dedicated for use as a burial ground, the land ceased to be Crown land, but was deemed to be subject to the operation of the Crown Lands Consolidation Act 1913 by amendments taking effect in 1988, with the result that upon the commencement of the Crown Lands Act 1989, the land was subject to that statute. I have explained above how the power to constitute the trustees as a body corporate was used to create CMCT’s predecessor in title, and how when the Crown Lands Act 1989 commenced there came into existence a reserve trust. Amendments in 2004 and 2009 together repealed the entirety of the Necropolis Act 1901 and, more recently, a new regulatory regime for cemeteries and crematoria was established by the Cemeteries and Crematoria Act 2013. Finally, the Crown Land Management Act 2016 now applies to the land, although the transitional provisions of that statute have still not fully taken effect.

29 The following overview taken from par 8 of the plaintiffs’ submissions may assist in identifying the significance of that history:

• “(a)

  The effect of the Necropolis Act 1867 (NSW), together with a proclamation made on 17 April 1868, was to vest the Catholic Cemetery Land in trustees pursuant to a charitable trust. The terms of the trust comprised the purpose of burying the dead of the Roman Catholic denomination.

• (b)

  Following an extension to the Rookwood Necropolis in 1889, additional land was vested in the trustees of the Catholic denomination and subjected to the same trusts as the original Catholic Cemetery Land, pursuant to the Necropolis (Additional Areas) Act 1893 (NSW).

• (c)

  On 25 January 1902, the terms of the trust changed upon the coming into force of the Necropolis Act 1901 (NSW). From this time, the purpose of the trust of the Catholic Cemetery Land became the use of land by the Catholic denomination as a burial ground for burying the dead.

• (d)

  On 1 April 1988, the Necropolis (Amendment) Act 1986 (NSW) made a series of changes to the 1901 Act which had the effect of subjecting theCatholic Cemetery Land to the operation of the Crown Lands Consolidation Act 1913 (NSW). Those changes did not affect the subsistence or terms of the trust.

• (e)

  On 1 May 1990, the Crown Lands Act 1989 (NSW) replaced the 1913 Crown Lands Act. That did not affect the subsistence or terms of the trust.

• (f)

  On 15 December 2004, the Rookwood Necropolis Amendment Act 2004 (NSW) repealed several provisions of the 1901 Act. Contrary to findings of Parker J, this Act did not affect the subsistence or terms of the trust.

• (g)

  On 1 July 2009, the Rookwood Necropolis Repeal Act 2009 (NSW) repealed the balance of the 1901 Act. Again, and contrary to findings of Parker J, this Act did not affect the subsistence or terms of the trust.

• (h)

  The Cemeteries and Crematoria Act 2013 (NSW) established a system for the regulation of the interment industry in NSW. Again, and contrary to findings of Parker J, this Act did not affect the subsistence or terms of the trust.”

30 The plaintiffs accepted that, by reason of the transitional provisions of the Crown Land Management Act 2016, any trust over the Catholic portion of land at Rookwood Cemetery will be abolished as at 29 February 2024. However, they maintained that, to the extent that the proceeds had been derived from the use of the Catholic portion of land, those proceeds were held by CMCT on the same trust as CMCT holds the land, which trust will not be abolished by the transitional provisions in the Crown Land Management Act 2016. Instead, on 29 February 2024, the plaintiffs submitted that the proceeds will pass to CCB and will be held subject to the same trusts as CMCT held them. 31 It will be seen that step (c) above, which concerns the effect of the Necropolis Act 1901, divided the parties as to whether it effected a change of the charitable purpose. It will also be seen that both the plaintiffs and the Attorney submitted that Parker J had erred in respect of the effect of the statutes enacted in 2004, 2009 and 2013 described in steps (f), (g) and (h).

Steps taken prior to the Necropolis Act 1867

32 The Bill which, as will be seen, passed through the NSW Parliament in November and December 1867 as the “Necropolis Regulation Bill” resulted in a statute (31 Vic No 14) which was given the short title (by s 25) of “Necropolis Act 1867”. It recited that “certain land consisting of two hundred acres or thereabouts at Haslem’s Creek has been purchased and become vested in Her Majesty the Queen and has by notification in the Gazette been designated the Necropolis”. 33 The materials supplied by the parties illuminated that recital. The Gazette of 28 September 1860 contained an advertisement inviting “Persons who may be willing to dispose of not less than 100 acres of land which may be suitable for a General Cemetery on or near the Great Southern Railway, between Sydney and Parramatta, are requested to communicate in writing with this Department [of Lands] …”. The 1862 deed conveying 200 acres for £2,000 pounds from Messrs Cohen and Benjamin to the Queen was in evidence, as was the fact of its registration (the conveyance predated the Torrens system introduced by the Real Property Act 1862 (NSW), and was governed by the Registration of Deeds Act 1843, 7 Vic No 16). Also in evidence were notices published in the Gazette on 17 August 1866 appointing “the following Gentlemen to be Trustees of the several portions of Haaslem’s Creek Cemetery, appropriated to the respective Denominations mentioned in connection therewith”, and identifying five Presbyterians, five Wesleyans, six “Independents” and three Jews.A small mystery, raised during the hearing, was the identity of the so-called “Independent” denominations. A notice published on p 5 of the Sydney Morning Herald on 22 January 1867 concerning the formal opening of the “Independent” portion of the cemetery by Congregationalist and Baptists resolves that point. It commenced:

“INDEPENDENT CEMETERY

A special service was held yesterday afternoon at Haslem’s Creek, to set apart the ground provided by the Government for an Independent Cemetery. This consists of four acres, and forms part of a block of about 200 acres which has been cleared and stumped, and will in future be known as ‘The Necropolis,’ — a name given by the Executive Council on the motion of the Hon. the Minister for Lands. …

A special train left Sydney at half past 2 o’clock and conveyed to the ground nearly three hundred persons. Among them were the Rev. J. Graham, [various named ministers] and a number of office-bearers and other influential laymen of the Congregational and Baptist Churches.

[Details of the service were then given, including a summary of Rev Graham’s address.]”

One historian of the period described the Reverend John Graham as “Minister of the Pitt Street Church, the colony’s leading Independent Church”: PD Davis, “The 1866 controversy: Religious teaching in public schools” (1964) 7(3) Journal of Christian Education 83 at 93. 34 A further notice published on 25 January 1867 was in the same terms, appointing the Most Reverend Archbishop Polding, the Very Reverend SJA Sheehy and Thomas Cooper Makinson as trustees of the portion set apart for Roman Catholics. Trustees of the “General Cemetery”, which was that part of the Rookwood Cemetery “not specially appropriated to any Religious Denomination”, were appointed by notice published on 29 January 1867. And on 5 February 1867 the Governor on the advice of the Executive Council directed “that the General Cemetery at Haslem’s Creek shall be designated ‘The Necropolis’ ”. 35 The foregoing was recounted in pars 49 and 50 of the Attorney’s written submissions, but those matters give rise to a larger mystery, which as it turns out bears upon the purpose of the Necropolis Act 1867 which is central to this litigation. That Act commenced on 23 December 1867, and the Bill only passed through the Parliament a few days earlier. Why was there repeated activity at the highest levels of the colonial government appointing trustees in 1866 and early 1867, not to mention the formal service opening the “Independent” portion on 21 January 1867, all well before the Necropolis Act 1867 was enacted? And what of the numerically most important denomination, the Church of England? The evidence and materials supplied by the parties, which exceeded 200 pages, did not include the appointment of trustees of the Church of England. Aside from the Attorney noting that “[i]t appears there was ongoing resistance from the Church of England”, the parties’ submissions shed no light on this. Nor did dozens of pages of reports of debates in the Legislative Assembly and Legislative Council, taken from the Sydney Morning Herald, although they did reveal that the Necropolis Regulation Bill was introduced in November 1867. However, although most of that debate took place on 15 November 1867, the report in the Sydney Morning Herald on28 November 1867 of the debate in the Legislative Council attributed the following to the government’s representative:

“Mr. DOCKER said that, in moving the second reading of the bill, he thought it only necessary to state that the bill was rendered necessary by the terms of the Crown Lands Alienation Act. The land which it was proposed to set aside as a necropolis, or ‘City of the Dead’, had before been alienated by the Crown and re-acquired and was now to be dedicated for the purpose of a cemetery.”

36 I shall return to what occurred earlier in 1867 prior to the enactment of the statute.

The Necropolis Act 1867

37 Section 1 of the Necropolis Act 1867 empowered the Governor, by proclamation published in the Gazette, to “dedicate and set apart” the Haslem’s Creek land for the purpose of the land being “used as a Cemetery”. Section 2 then empowered the Governor to “set apart” a separate portion of the cemetery’s land for each of six specified religious denominations (the Church of England, the Roman Catholic Church, Presbyterians, Methodists, Independent and Jews) for the purpose of the portion so set apart “being used as a Burial Ground for burying the dead of such denomination”. Section 2 also provided for the Governor to appoint a body of individuals as trustees of each portion of the cemetery so set apart. The trustees of each denominational portion were to belong to the denomination in question. A corresponding provision for the “General” portion of the cemetery was made by s 3. This was “to be used as a Burial Ground for burying the dead for whose burial none of the several portions of land set apart as in the said last section mentioned may from any cause whatever be applicable”. 38 The division between denominational portions and a general portion reflected a series of compromises, explained in Dr Lisa Murray’s doctoral thesis “Cemeteries in nineteenth-century New South Wales: Landscapes of memory and identity” (PhD thesis submitted to the University of Sydney, August 2001), to which Parker J had regard, and to which I had regard in Carr v Carr (2022) 21 ASTLR 511; [2022] NSWSC 166. It is an example of the “serious studies and inquiries and historical narratives” to which Dixon J referred in Australian Communist Party v Commonwealth of Australia (1951) 83 CLR 1 at 196; [1951] HCA 5, and in any event, relevant extracts were tendered. 39 Dr Murray explained the failure of the General Cemetery Bill 1845 (an attempt to establish a General Cemetery with no religious distinctions — such that Catholics could be buried next to Protestants) led to the Sydney Necropolis Act 1847, 11 Vic No 11 which contemplated a single body of trustees managing a site with separate areas for various religious denominations. But the plan envisaged by that Act never came to pass. As Dr Murray put it at pp 84–85:

“Opposition by the Churches to the ‘General Cemetery’ [Act] of 1847 [that is, Sydney Necropolis Act 1847] with its non-denominational emphasis forced the colonial government to redesign the cemetery in Sydney. It was recommended that the government relax the management strictures of one body of trustees, thereby ensuring ‘[an] avoidance of collision with the conscientious scruples or even prejudices of the various sects of religionists’. In the end, the Churches won the right to have their own denominational portions of the general cemetery vested with their own Trustees. The 1867 Necropolis Act repealed the 1847 General Cemetery Act, and the new Sydney cemetery — The Necropolis at Haslem’sCreek (later known as Rookwood Necropolis) — was a government planned cemetery but with essentially denominationally managed burial grounds.” (Footnote omitted; the quotation is from a Minute from the Secretary for Lands of 17 May 1858 printed in New South Wales Legislative Assembly Votes and Proceedings, 1863–1864, vol 5, p 64.)

40 The explanation was made more pointedly in Dr Murray’s article, “ ‘Modern innovations?’ Ideal vs. reality in colonial cemeteries of nineteenth-century New South Wales” (2003) 8(2) Mortality 129 at 131:

“The clergy objected superficially on the grounds of sectarian feelings; but fundamentally the proposal challenged their control of burial grounds in the colony.”

41 Returning to the statute, s 4 was described by Parker J at [218] as the “critical provision”. It applied to the groups of trustees appointed pursuant to s 2 as trustees of each of the portions set apart for burying the dead of each denomination, and also to the trustees appointed pursuant to s 3 as trustees of the general portion. Section 4 provided:

“Each body of Trustees … and their successors shall by virtue of this Act have vested in them the legal estate in and shall hold for ever the portion of land in respect of which they shall be appointed Trustees as aforesaid respectively for a Burial Ground for burying the dead as hereinbefore mentioned and the land so vested in them together with all erections thereon and the rights easements and appurtenances to the same belonging shall remain vested in the said Trustees and their successors for ever upon the trusts and purposes and subject to the provisions of this Act.”

42 Pausing there, it is plain from the references in s 2 to “burying the dead of such denomination” and in s 4 to “burying the dead as hereinbefore mentioned” that the statute required the denominational cemeteries to be restricted to burial of members of that denomination. 43 In light of the significance attributed to the balance of the statute by Parker J, the following provisions should also be mentioned. Section 5 empowered the Governor, by proclamation, to remove and replace any of the trustees. Section 6 provided that the trustees should lay out the portion of land vested in them in an appropriate manner, and undertake any consequential landscaping and enclosures, while s 15 empowered the trustees to build a mortuary church or chapel for funeral rites and ceremonies for the burial of the dead, for which purpose they might borrow moneys, charging borrowing expenses against income received by them. Section 8 gave the trustees power to sell and grant exclusive rights of burial and rights to construct vaults or erect gravestones, while s 9 empowered the trustees to charge fees for interment of bodies and the grant of such burial rights. 44 Section 12 authorised the trustees of the denominational portions of the cemetery to appoint a “recognized minister” of the denomination as chaplain to perform the burial services within their portion of the cemetery. The chaplain was to be paid an annual stipend, not to exceed a statutory limit. Alternatively, the trustees might choose not to appoint a chaplain and instead to allow burials to be conducted by visiting ministers of the denomination, who were to be entitled to a fee fixed by the trustees. Any recognised minister of the denomination had the right to attend the cemetery and conduct services, but was not entitled to any fee for doing so unless sanctioned by the trustees. 45 Section 16 and s 17 provided that the “business and general management” of the affairs of the cemetery were to be placed in the hands of a secretary and such clerks as might be necessary, to be appointed by the Governor, subject toany regulations made by the trustees. The secretary was to receive all moneys payable under the Act or levied by the various bodies of trustees (but was to keep a separate book of income and expenditure for each trustee body). An abstract of the accounts was to be verified annually by the secretary before being sent to the Minister of Lands and published in the Gazette. For “any matter arising with respect to interments” in any of the separate portions of the cemetery not provided for by the Act or the regulations, the secretary was to have power to act under the directions of the body of trustees in whom that portion was vested. Section 18 empowered the trustees to make rules and regulations “in respect of” the portion of the cemetery vested in them, and to do whatever was necessary for “carrying out the purposes of this Act” and in particular for siting graves and vaults and protecting buildings, monuments etc from destruction or damage. 46 Section 14 provided that the fees, charges and other income derived by the trustees were to be applied in the following order: meeting the trustees’ expenses, “maintaining the portion of the cemetery vested in them”, paying stipends to ministers and other officers, and finally “laying out and embellishing the portion of the Cemetery vested in them”. 47 Sections 20–24 dealt with offences, including fines for anyone committing a nuisance or “wantonly or wilfully” damaging any monument or the like, and provided for summary prosecution before a Justice of the Peace.

48 As Parker J observed in his account of the 1867 statute, there was a deal of governmental oversight of the activities of the trustees. In addition to the power to appoint and remove the trustees and the secretary, the approval of the Governor was required for the plans of laying out the land and of building any mortuary chapel, and for the terms of and fees for the selling of rights of burial and erecting gravestones. The general regulation-making power was also subject to the Governor’s approval.

Proclamation of 7 April 1868

49 In the exercise of the power conferred by s 1 of the Necropolis Act 1867, on 7 April 1868 the Governor issued a proclamation in the Gazette to “dedicate and set apart the said land at Haslem’s Creek, for the purpose of the same being used as a Cemetery, under the name and designation of ‘Necropolis’ ”. 50 On the same day, the Governor exercised the power in s 2 to “set apart” parts of the same land for each of the six denominations. Approximately 39 acres were “set apart for the said denomination in the said Act mentioned or referred to as ‘Roman Catholic’ ”. After giving a metes and bounds description of the land so set apart, the proclamation continued:

“[F]or the purpose of the same being used as a burial-ground for burying the dead of such last-mentioned denomination: And do appoint the Most Reverend John Bede Polding, The Very Reverend Samuel John Austin Sheehy, and Thomas Cooper Makinson, Gerard Phillips, and Michael M’Mahon, Esquires (being members of such last-mentioned denomination), Trustees of the lastly above described land …”

51 The first three of those men had purportedly been appointed trustees of the same land by the notice gazetted on 25 January 1867 mentioned above. But the latter appointment of a larger body of men as trustees of the same land, this time pursuant to explicit statutory authority, must supersede the earlier appointment. 52 Also on the same day, the Governor set apart a separate part of the land for a “General Cemetery” comprising some 58 acres “to be used as a burial-ground for burying the dead, for whose burial no portion or portions of land have, or has been, or shall hereafter be, set apart … by the second section of the said Act of Council may, from any cause whatever be applicable”.

The legislation of 1884 and 1887

53 The Necropolis Act Amendment Act 1884 (NSW) amended the 1867 Act mostly in “matters of detail only”, as Parker J described the position at [239], including a clarification of the power to make regulations imposing a fine for their infringement. Neither Parker J nor the parties suggested that there was any change relevant to the current litigation. 54 In 1879 the Crown purchased an additional 577 acres as part of a larger purchase of 1,340 acres from Messrs Benjamin, Marks and Cohen. But the Necropolis Act 1867 only applied to the 200 acres of land at Haslem’s Creek which the Crown had acquired for the purpose of a burial ground. 55 The land repurchased in 1879 was “Crown Lands” within the meaning of s 4 of the Crown Lands Act 1884 (as “lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any [previous Crown Lands Acts]”) and subject to the operation of Pt V which was headed “Dedications — Reserves — Roads”. Section 101 authorised “temporary reserves from sale” for various purposes concerning town planning, and s 102 provided that lands so reserved should not be sold before the reservation was revoked. Section 103 provided that land might also be temporarily reserved from sale for various other public purposes. Section 104 departed from the language of “temporarily reserved from sale” and empowered the Governor to “reserve or dedicate” Crown Lands for some 16 enumerated purposes and for any other public purpose. One of the enumerated purposes was “interment of the dead”. Section 104 concluded:

“And subject to the provisions in the next following section all lands heretofore or hereafter permanently reserved for any of the purposes aforesaid shall be deemed to be set apart and dedicated accordingly and every conveyance alienation or disposition thereof except for the purpose for which such reservation shall have been made shall be absolutely void as well against Her Majesty as all persons whomsoever.”

56 Section 105 conferred a special power to revoke dedications or reservations. Section 106 authorised the appointment of “trustees”, not less than three in number, “to be charged with the care and management of lands already or hereafter dedicated [or] reserved …”. There is nothing in s 104 or s 106 that vests legal title in dedicated Crown land in trustees, and to the contrary, despite being called “trustees”, s 106 provides that they have “care and management” of such land, as opposed to legal ownership. Further, it is far from clear that all of the public purposes in s 104 would be charitable. Some (such as those relating to hospitals) unquestionably are, but the list includes “any purpose of defence”, “town-hall court-house or gaol”, “public market or slaughter-house” and “any other public purpose”, and in Australia it is not sufficient merely to point to a purpose beneficial to the community or of general public utility in order for a trust to be charitable, a point made by Lord Wilberforce in Brisbane City Council v Attorney-General for Queensland [1979] AC 411 at 422 by reference to Incorporated Council of Law Reporting of the State ofQueensland v Commissioner of Taxation of the Commonwealth of Australia (1971) 125 CLR 659 at 666–667; [1971] HCA 44. While the restriction to purposes within the “spirit and intendment of the Preamble to the Statute of Elizabeth … should be given no narrow or archaic construction”, Bathurst City Council at [34] confirms that the constraint continues. To the extent that the purposes of defence, or a town-hall, or a public market or slaughter-house are outside the so-called “fourth category” of charitable trusts, then “trustees” appointed under s 106 of land permanently dedicated for such purposes cannot be trustees of a charitable trust. There are two clear reasons for this: such “trustees” do not hold legal title to the land, nor is the purpose for which the land is held one that is charitable. 57 By proclamation on 2 December 1887 pursuant to s 104 of the Crown Lands Act 1884, some 577 acres of further Crown land was dedicated for the purpose of “Extension to Necropolis”. By a proclamation gazetted on 7 February 1889 which referred to the 2 December 1887 dedication, defined parcels of land were set apart for seven named denominations, including 131 acres and 2 roods which was “set apart exclusively for the burial of the dead of the denomination mentioned or referred to as ‘Roman Catholic’, in addition to the land now held in trust by such denomination for a like purpose at the said Necropolis”. Five trustees were also appointed (with the source of power to do so not being specified). As has been explained, the proclamation did not of itself vest the land in the existing trustees. Thus, although “interment of the dead” is unquestionably a charitable purpose, I find it difficult to see how “trustees” to whom is given pursuant to s 104 the “care and management” of Crown land for that purpose would be regarded as trustees of a trust recognised in equity, because they did not have title to the trust property. It is not necessary to explore the possibility noted by Professor Campbell that the effect was that the Crown was constituted as a trustee of the land for the charitable purpose; cf E Campbell, “Rights of common in New South Wales: A history” (2007) 11(2) Legal History 243 at 251–252. That is because the Necropolis (Additional Areas) Act 1893 not only provided for the appointment of bodies of trustees for two additional denominations, but also vested a specified portion of the additional land in each of the (now eight) bodies of denominational trustees. The new statute provided that it was to be “read with” the two previous statutes: s 1. Section 3 of the Act (read with Sch B) provided that the 132 acres (which presumably corresponds with the 131 acres 2 roods in the 1889 proclamation) were vested in “the trustees of the … Roman Catholic … Cemeteries appointed under the ‘Necropolis Act of 1867’ … and their successors, to be held by them as burying grounds for burying the dead of their respective denominations”. Section 4 provided that the earlier Necropolis legislation applied to the new land vested in the trustees. The Bill was described by the Minister introducing it as “merely a formal measure” and proceeded uncontroversially and rapidly through the chambers: Legislative Council, New South Wales, Parliamentary Debates (Hansard), 23 May 1893, 7426; Legislative Assembly, New South Wales, Parliamentary Debates (Hansard), 31 May 1893, 7793. 58 The vesting of title under a separate, bespoke statute may be contrasted with the appointment of “trustees” to land dedicated pursuant to s 104 of the Crown Lands Act 1884. In that way the additional 132 acres were held on the same terms as the original 39 acres. No party submitted, and nothing in Parker J’s reasons suggests, any different result.

The Necropolis Act 1901

59 The Necropolis Act 1901 was in fact Act No 20 of 1902 and commenced on 25 January 1902 (and thus it is found in physical and electronic collections of statutes made in 1902), but s 1 states that it may be cited as the “Necropolis Act 1901” and I shall follow that course. By s 2, it repealed earlier legislation including the Necropolis Act 1867 and the Necropolis (Additional Areas) Act 1893. Section 3 deemed trustees (as well as secretaries, managers and other officers) appointed under those Acts to be appointed under the Necropolis Act 1901, and s 4 deemed proclamations and notifications made under those Acts to be made under the 1901 Act. The Act defined “Necropolis” as “the lands which have been heretofore and shall be hereafter dedicated as a cemetery for burying the dead at Haslem’s Creek and Rookwood” (s 6). 60 The parties were divided as to the effect of s 7, which was relevantly as follows:

• “(1)

  All lands at Haslem’s Creek and Rookwood heretofore dedicated for the purpose of being used as cemetery under the name and designation of Necropolis shall continue to be so dedicated.

• (2)

  Every portion of any such lands heretofore set apart for any denomination and vested in trustees as a burial ground for the use of such denomination shall continue to be so set apart and be vested in the present trustees thereof and their successors.”

61 The plaintiffs submitted that, unlike the earlier Acts, s 7 did not identify the purpose for vesting land in the trustees of each denomination as “burying the dead of such denomination”. Instead, it identified each portion of land by the purpose of “a burial ground for the use of such denomination” and continued the vesting of the land for that purpose. This difference in wording gave rise to the second issue in the litigation. 62 The counterpart to s 4 of the Necropolis Act 1867 was s 12, which provided:

“Each body of trustees appointed under this Act and their successors shall by virtue of this Act have vested in them and shall hold for ever the portion of land in respect of which they are appointed for a burial ground for burying the dead and the land so vested in them together with all erections thereon and the rights easements and appurtenances to the same belonging shall remain vested in the said trustees and their successors for ever upon the trusts and for the purposes and subject to the provisions of this Act.”

63 I shall return below to the effect of the repeal of the Necropolis Act 1901, and in particular the repeal of s 12. 64 It will also be necessary to have regard to s 11:

“Every separate portion of land hereafter set apart shall upon the issue of the proclamation in that behalf in the Gazette vest in the trustees of the denomination for which it is set apart and their successors or as the case may be in the trustees of the general cemetery of the Necropolis and their successors.”

Further adjustments and additions

65 Between 1943 and 1985 six adjustments were made to the boundaries of “the Roman Catholic Burial Grounds” pursuant to s 10 of the Necropolis Act 1901. In 1972 pursuant to s 9 of the same statute an additional area of just over an acre was added to the “Roman Catholic Section” (the same proclamation added just over half an acre to the Lutheran section, just over 3 acres to the Jewish section and just over 2 acres to the “Independent” section). 66 There were further adjustments in 1994 and 1996, once again pursuant to s 10 of the Necropolis Act 1901, although by this time the land had alsobecome subject to the Crown Lands Act 1989. For example, in 1996 in connection with the reworking of a T-intersection, an additional 770 square metres were added to the “Catholic Cemetery, Necropolis”. 67 It was not suggested that any of these adjustments or additions bore upon the issues in this litigation.

The land becomes subject to the Crown lands legislation

68 I shall return to the significance of legislation regulating Crown land in construing the effect of the dedication and setting apart of the land at Rookwood. The most important statutes were the Crown Lands Alienation Act 1861 (NSW) (to which Mr Docker had referred when introducing the Bill which became the Necropolis Act 1867), the Crown Lands Act 1884, the Crown Lands Consolidation Act 1913, the Crown Lands Act 1989 and the Crown Land Management Act 2016. Each built on its predecessor. 69 As has been seen above, the land which became Rookwood Cemetery had been granted to private ownership but was repurchased by the Crown in 1862. It was then “dedicated and set apart” for the purpose of burial grounds, in part pursuant to the Necropolis Act 1867 and in part by a dedication under s 104 of the Crown Lands Act 1884 but then by a further vesting by the Necropolis (Additional Areas) Act 1893. The land thereby ceased to be Crown land, and instead was regulated through the Necropolis Acts of 1867 and 1901. 70 However, from 1988, a series of changes were made which had the effect of treating land at Rookwood Necropolis as a reserve subject to the operation of Crown lands legislation. The plaintiffs submitted that none of these changes had the effect of extinguishing any trust over the Catholic portion of land at Rookwood Cemetery. 71 The Necropolis (Amendment) Act 1986 (NSW) deemed portions of land within the Necropolis set apart for the use of a particular denomination to have been dedicated for a public purpose under s 24 of the Crown Lands Consolidation Act 1913. Thus, with effect from 1 April 1988:

• (1)

  that land was taken to be a “reserve” within the meaning of s 37M of the Crown Lands Consolidation Act 1913; and

• (2)

  s 37R charged the trustees of a reserve “with the care, control and management of the reserve”.

72 The Necropolis (Amendment) Act 1986 also repealed the provisions of the Necropolis Act 1901 dealing with the appointment and removal of trustees (s 14), the conferral of control and management over the land and the other responsibilities and obligations on the trustees (ss 15–16) and the provisions dealing with the application of income and the making of annual reports to the Minister (ss 18–19). The Act inserted a new s 14 enabling trustees to be appointed “for the land set apart for the use of a particular denomination” in accordance with Pt IIIB of the Crown Lands Consolidation Act 1913. 73 On 31 March 1988, by notification published in the Gazette under s 14 of the Necropolis Act 1901 and s 37O of the Crown Lands Consolidation Act 1913 (which appears in Pt IIIB), the Minister appointed five natural persons (Messrs Cox, John d’Apice, Belkovskis, Richard d’Apice and Giles) as trustees of the “Catholic Cemetery” for terms of five years. On the same day, by another notification published in the Gazette under s 37Q of the Crown Lands Consolidation Act 1913 (which also appears in Pt IIIB), the Minister declared the trustees of the “Catholic Cemetery” and their successors in office to be a corporation: “Catholic Cemetery Trust, Necropolis”. Although the new s 14 didnot commence until 1 April 1988, pursuant to s 26 of the Interpretation Act 1987 (NSW) the instruments gazetted on 31 March 1988 took effect on 1 April 1988 as if made under the new s 14. 74 The Necropolis (Amendment) Act 1986 also inserted Sch 5 into the Necropolis Act 1901, which made a series of important transitional provisions. By cl 1 and cl 2 of that schedule, the assets and liabilities of former trustees were transferred to new trustees appointed under the Crown Lands Consolidation Act 1913, the existing trustees ceased to hold office, but were eligible if otherwise qualified to be re-appointed. The result was that the same land was held by a corporation, constituted under the Crown Lands Consolidation Act 1913, comprising the same five men who had previously been trustees. 75 What occurred gives rise to a little difficulty, although it is a difficulty on which nothing turns. It will be recalled that s 4 of the Necropolis Act 1867 and s 3 of the Necropolis (Additional Areas) Act 1893 vested legal title to the Rookwood Necropolis land in the trustees. This is quite different from the appointment of “trustees” of land which has been reserved or dedicated under the Crown lands legislation — for such trustees have the “care and management” of the reserve and typically legal title would remain in the name of the Crown. But there is nothing to suggest that legal title revested.

217 Some additional 132 acres became subject to the same charitable trust in 1893. Although the original dedication was under the Crown Lands Act 1884, which fell short of vesting title in the trustees, by 1893 that had occurred under the Necropolis (Additional Areas) Act 1893, and the same statute made it plain that the additional land was held on the same terms. The further variations throughout the 20th century did not alter the nature of the trust, nor did the enactment of the Necropolis Act 1901 (although I shall return below to the parties’ submissions concerning whether that statute altered the charitable purpose). 218 My conclusions turn in part upon what I regard as the important aspects of Attorney General v Eagar, Rutledge and Ward, and in part upon aspects of the context. In fairness, it seems that many or most of those considerations had not been advanced in argument to Parker J.

Second issue: the effect of the repeal of the later legislation

219 It is necessary to give separate attention to (a) the Necropolis Act 1901, (b) the amending legislation in 2004 and 2009 which repealed the Necropolis Act 1901, and (c) the Cemeteries and Crematoria Act 2013, although his Honour placed greatest weight on the 2004 and 2009 statutes.

The Necropolis Act 1901

220 The principal importance of the Necropolis Act 1901 was the variation in the wording of the purpose for which the land was held, which is the fourth issue and is addressed below. Parker J also regarded this variation as presenting a potential difficulty for the plaintiff which contended on the one hand that there was a charitable trust, but on the other hand that s 12 altered the charitable purpose. His Honour said at [250]:

“[250] This change created a potential difficulty for the argument presented by counsel for the [plaintiff]. It is a fundamental principle of the law of charitable trusts that the terms of the trust are fixed at the inception of the trust and cannot thereafter be changed, at least while it is possible to carry out the trust in accordance with its original terms: see General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515. Counsel recognised that, on the face of it, if a charitable trust in equity had been established for purposes defined by the terms of the 1867 Act, then there was a difficulty in explaining how those terms could, in equity, have changed.”

221 It will be seen that on the view I take, this potential difficulty does not arise. But I would add that there is no obstacle in statute amending the charitable purpose of a trust. I respectfully do not accept that it is “fundamental” that the terms of a trust are fixed at its inception. Trusts are a flexible institution, and it all depends on how the trust is constituted. It is rare to see a private discretionary trust that does not include a power of variation. Statutes have long conferred powers on courts to vary trusts — the power of advancement in s 44 of the Trustee Act 1925 (NSW) is a familiar example, and a broader power has more recently been conferred by s 86A. Turning more specifically to charitable trusts, the point of a cy-près scheme is to alter an existing charitable purpose. I see no reason in principle why a statute cannot alter the purpose of a charitable trust already in existence in equity. An example of a statute treating an altered purpose as a charitable trust is, in fact, s 8(3) inserted by the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Act 2006 (NSW), which provides that if certain changes took place, then “any trust fund that was originally established for the purposes referred to in subsection (1)(a) … continues to be a valid charitable trust”.

The repeal of the Necropolis Act 1901

222 Parker J regarded the subjection of the land at Rookwood Cemetery to the powers conferred under the Crown lands legislation as significant when coupled with the repeal of s 12 of the Necropolis Act 1901, saying of this at [261]–[262]:

“[261] … Any obstacle which that section presented to the full sweep of Ministerial powers under the Crown Lands Act disappeared. The [Rookwood Necropolis Amendment Act 2004] also repealed all of the dedication provisions under the 1901 Act, leaving the Crown Lands Act provision for dedication as the only remaining one. This clearly would have permitted the Minister to exercise powers of amalgamation, rededication or revocation.

[262] On this view, if any trust in equity subsisted at all after the repeal of s 12, it would properly have been characterised as a trust for purposes under the Crown Lands Act.”

223 There are two aspects to what flows from the repeal of s 12. One is that it seems that the parties advanced submissions before Parker J that the power of the Crown Lands Act Minister to deal with the land at Rookwood was confined by s 12, leading to a difficulty when s 12 was abolished. Ultimately it was on this basis that Parker J regarded the omission of s 12 in the amending legislation of 2004 as decisive. 224 But that argument proceeds on a false basis. As was emphasised in the parties’ submissions in this court, the existence of a power to alter or extinguish a trust is quite different from its exercise. Private trusts not uncommonly include powers to bring the trust to an end, or to vary its terms, often conferred upon an “appointor”. Such trusts continue in existence, unvaried, until and unless the power is exercised (or the trust vests by operation of law). In the modern regulated world, land held on trust may become subject to the exercise of powers of the Executive and government agencies (local government may require plans of management, heritage land may be protected, and so on) thereby imposing obligations on a trustee or circumscribing the trustee’s power to use trust assets to carry out a charitable purpose. The regulators of charities may insist upon disclosure of information concerning those controlling the trust assets, and the publication of financial information: see for example Pt 3‐2 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth). In short, the susceptibility of the rights, obligations, powers, privileges and immunities constituting the trust to such a power does not mean that the trust comes to an end. There is no occasion to speculate whether and if so the extent to which s 12 circumscribed the Minister administering the Crown lands legislation to exercise powers such as the power to rededicate the land at Rookwood. There is no suggestion that any such power was exercised. 225 The second aspect to the repeal of s 12 is that if there were merely a statutory trust, such that the sole source of the obligation that the land be held for the purpose stated in s 12 was that section, then that obligation cannot survive the repeal of the section. But my conclusion that the dedication and setting apart and vesting in trustees in 1868 and 1889 created a trust recognisedin equity carries with it the consequences that neither is the continuation of s 12 on the statute books necessary for the charitable trust to continue, nor does the repeal of s 12 extinguish the trust. That conclusion accords with the stated purpose of the Rookwood Necropolis Amendment Act 2004, namely, to remove provisions which had “fallen into disuse”, and is therefore favoured by s 33 of the Interpretation Act. 226 Section 30(1)(c) of the Interpretation Act provides that “any right, privilege, obligation or liability” which has been “acquired, accrued or incurred” is unaffected by a repeal. Parker J said at [273] that “this provision preserves rights and obligations, not institutions. At most, if a trust had subsisted and there had been accrued rights or liabilities of the Trustees (for instance, a right of indemnity) then those specific rights and liabilities would have been preserved. The enactment would not have continued the trust itself”. The plaintiffs before this court were critical of this, and there is some force in their criticism. I agree with them that there is no valid distinction between the rights, privileges, obligations or liabilities involved in the trust relationship and the trust as an “institution”. A charitable trust is nothing more nor less than the bundle of rights, privileges, obligations and liabilities between the trustee and the trust property in respect of the charitable purpose. 227 But s 30(1)(c) does not preserve all rights, privileges, obligations and liabilities. As Parker J also stated, s 30(1)(c) only applies to rights, privileges, obligations and liabilities which are “acquired, accrued or incurred” under the repealed Act. It is true that it is awkward, to say the least, to regard a right of indemnity for liabilities not yet incurred to fall within s 30(1)(c). But it is also necessary to have regard to s 30(1)(b) which provides that the repeal of an Act does not affect the previous operation of the Act or “anything duly suffered, done or commenced under the Act”. A charitable trust was created by the exercise of powers under the Necropolis Act 1867 vesting the legal estate of land in trustees to hold it for a specified purpose. The vesting of legal title in the trustees, as opposed to Queen Victoria, thereby creating a trust recognised in equity answers the description of something “done” under the Act. 228 True it is that there was a deemed dedication of the land under the Crown lands legislation, as noted in Sch 8 cl 54 to the Crown Lands Act 1989 inserted by the Rookwood Necropolis Repeal Act 2009. But that statutory fiction does not alter the vesting which actually occurred in 1868 and 1893. I incline to the view that cl 54(2) which provided that the repeal of the Necropolis Act 1901 “does not affect any vesting of land that, before the appointed day, had been effected under section 11 of that Act” does not apply. Section 11 spoke to every “separate portion of land hereafter set apart”, and the land the subject of this litigation was vested in the trustees in 1868 and 1893. But the fact that cl 54(2) seems not to deal explicitly with the vesting of land in the trustees does not detract from the fact that cl 54(1) confirms the dedication and the appointment of the reserve trust. There is nothing in the legislation in 2004 or 2009 to suggest that it did. 229 Finally, Parker J addressed the possibility that the trust might have survived the repeal of the entirety of the Necropolis Act 1901, saying at [277] that the reorganisation undertaken by the Minister in April 2012 “clearly proceeded on the assumption that the Cemetery was regulated by the Crown Lands Act and nothing else” and that “it clearly must have been intended by Parliament that the regulatory regime established by the Cemeteries and Crematoria Act 2013 would apply to the Rookwood Cemetery”, with the result that “[h]ad a trustsurvived to that point, it probably would have been abolished by necessary intendment because of its inconsistency with the system of regulation established by the 2013 Act”. The 2012 reorganisation affected the other portions of land, but not the Catholic portion, and may be disregarded, but it remains necessary to address the effect of the Cemeteries and Crematoria Act 2013 upon the charitable trust subject to which that land was held. 230 Unquestionably the trustee was subject to the regulatory regime established by the Cemeteries and Crematoria Act 2013. But that is not antithetical to the existence of a charitable trust. The Codes of Practice which may become mandatory practice requirements pursuant to Pt 3 Div 2 and Div 3 are consistent with a trust, as is the susceptibility of the trustee to incurring the obligations occasioned by service of an “improvement notice” or “short term order” pursuant to Div 4 and Div 5, and the reporting obligations imposed by Div 7. The same may be said of the regulation of interment rights, the appointment of managers and the making of draft plans of management, and the investigation powers conferred on the regulator. 231 I conclude that the charitable trust of the Catholic portion of Rookwood Cemetery continued in existence notwithstanding the legislation enacted between 1901 and 2013.

Third issue: the effect of the Crown Land Management Act 2016

232 This litigation has been conducted on the basis that the “Other Financial Assets” which are the subject of this litigation are the proceeds of the activities of the plaintiffs and their predecessors in respect of the land. Attorney-General for the State of Queensland; Ex rel Nye v Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1977) 136 CLR 353; [1977] HCA 15 held that the product of the use of trust property may also be held as property of the trust, as was observed in University of New South Wales International House Ltd v University of New South Wales [2016] NSWSC 1709 at [64] and Harmony — The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276 at [67]. I see no reason to doubt the correctness of that conclusion in its application to the present facts, noting that the financial statements record that the Other Financial Assets have the purpose of generating returns to satisfy future obligations of the trustees by way of maintenance. It can scarcely have been the case that the trustees were at liberty to devote proceeds from the operation of the charitable trust to other purposes. 233 The parties correctly proceeded on the basis that Sch 7 cl 11(2A) will cause the trust over the land in the Roman Catholic portion of Rookwood Cemetery to be abolished on 29 February 2024. That is the plain meaning of the provision. 234 It is fair to say that neither party made detailed submissions on whether cl 11(2A) would abolish the entirety of the charitable trust, or will merely do so to the extent that it applied to land. The plaintiffs’ submissions were confined to two paragraphs; those of the Attorney to a single paragraph. 235 Both the plaintiffs and the Attorney submitted that the effect of cl 11(2A) is that it will abolish the charitable trust insofar as it applies to land, but will leave in place the charitable trust in respect of the non-land assets, which is to say, the approximately $160 million in “Other Financial Assets”, which assets continue to be subject to the same charitable trust. That is said to be the consequence of the preservation of existing trusts in s 1.10 together with thelimited abolition of the trust in cl 11(2A) insofar as it applies to trust land, coupled with the presumption that legislation does not interfere with rights of property. I would give little weight to the latter presumption. The point of the new regime is to abolish the corporations which formerly were reserve trusts and to abolish the trusts over reserves of which reserve trusts were formerly the trustees. That is not a propitious starting point for an implication that there is a non-interference with property rights. The point was made by Gageler and Keane JJ in Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [314]:

“[314] … The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that ‘[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve’.” (Footnote omitted)

236 In short, the question is one of construction, rather than presumption. 237 The plaintiffs asserted that cl 11(2A) “does not affect trust property that is not land”. That is less than self-evident; cl 11(2A) abolishes “Any trust over the trust land” of, relevantly, CMCT. Unquestionably the provision extinguishes at least some of the rights, obligations, powers, privileges and immunities that constitute the trust relationship. One way of construing the provision is that it extinguishes the trust relationship pro tanto, only insofar as it applies to CMCT’s trust land. Another way of construing the provision is that where there is a trust which extends to CMCT’s trust land, that trust in its entirety is extinguished. Although “extinguish” is a slightly awkward verb to use to describe the bringing to an end of the trust relationship, both meanings are available as a matter of language. 238 Nor does it advance the analysis to observe that (a) pursuant to cl 11(5)(b) the assets of CMCT are transferred to CCB, (b) pursuant to cl 11(7) Sch 6 applies to the transfer, and (c) pursuant to Sch 1 cl 3(1)(c) the transferee has all the entitlements and obligations of the transferor in relation to the transferred assets; with the consequence that “any trust of the Catholic Cemetery Proceeds survives the abolition of CMCT on 29 February 2024 and will continue to attach to those proceeds in the hands of CCB from 29 February 2024”. The first three steps in the submission are correct, but the consequence for which the plaintiffs contend does not follow. The conclusion is premised upon the abolishing effect of cl 11(2A) being confined to the trust insofar as it extends to trust land, and not extending to trust assets other than trust land. 239 Perhaps it was with those possibilities in mind that the Attorney General’s submission was more equivocal: “The better view is that cl 11(2A) does what it says and no more: that is, it is only the ‘trust over the trust land’ that is abolished”. 240 Nonetheless, I have concluded that the construction for which all parties contend is to be accepted. Clear language has been used to address the abolition of a trust over the land of a former reserve trust, and there is silence in respect of trust assets which are not land, save for the general transfer of those assets to the relevant transferee. 241 The purpose of the Crown Land Management Act 2016 is to regulate Crown land, as opposed to personalty, even if that personalty may have been derived from the use of Crown land. There is nothing in the statute or the extrinsicmaterials or the context to suggest that the legislation had any effect (or will have any effect) on extant charitable trusts of personalty. As Parker J observed at [300], there is a legislative gap. The better view is that the result of that legislative gap is that the charitable trust continues in respect of personalty. That conclusion does not turn on any aspect of Mayor of Lyons v Advocate-General of Bengal.

242 I am conscious that the accumulated “Other Financial Assets” are evidently in the nature of capital as opposed to revenue and reflect historical use of the trust land, including from the sale of interment rights which have been regulated from 1867. But there is nothing in the transitional provisions resembling s 64 of the Conveyancing and Law of Property Act 1898 (NSW) whereby “Capital money arising under this part while remaining uninvested or unapplied, and securities on which an investment of any such capital money is made shall, for all purposes of disposition, transmission, and devolution be considered as land”, nor does anything in the scheme of the Crown Land Management Act 2016 resemble the issues which arise when, as Romer J put it in In re Scholfield’s Will’s Trusts [1949] Ch 341 at 346, “money has, through wholly fortuitous circumstances, been substituted for an interest in property”. Thus I see no sound basis to construe “Any trust over the trust land” to include “Any trust over the trust land, including any trust over personalty representing the proceeds of the authorised use of trust land”. 243 Accordingly, I conclude that the proceeds will, from 29 February 2024, continue to be held on the same charitable trust as the Rookwood land and proceeds have been held on up to that date.

Fourth issue: the terms of the charitable trust

244 I have hitherto deferred dealing with the parties’ submissions on the effect of the change in language effected by the Necropolis Act 1901. 245 The plaintiffs submitted that the altered wording in the Necropolis Act 1901 amounted to a broader purpose, which was reflected in other provisions of the 1901 Act. They submitted:

“Thus, s 8 empowered the Governor to set apart ‘as burial grounds for the use of any denominations’ separate portions of land at Rookwood hereafter reserved or dedicated for the interment of the dead. Section 9 empowered the Governor to ‘set apart as a burial ground or additional burial ground for the use of any denomination’ any portion not hitherto specifically vested in the trustees of any denomination out of the 577 acres dedicated on 2 December 1887. Section 10 empowered the Governor, on application of the trustees of any portion of the land, to adjust the boundaries of vested portions and ‘for that purpose [to] vest any part of any portion of land in any such trustees’. Section 11 provided that every portion of land ‘hereafter set apart’ shall vest in the trustees of the denomination ‘for which it is set apart’. Section 14 empowered the Governor to appoint trustees of the portions of land ‘set apart for the use of a denomination’, being trustees not fewer than five and being members of the denomination ‘for whose use the portions of land are set apart’.”

246 The plaintiffs then submitted that s 12 of the Necropolis Act 1901 was to be read accordingly. Section 12 provided, with the emphasis given to it by the plaintiffs:

“Each body of trustees appointed under this Act and their successors shall by virtue of this Act have vested in them and shall hold for ever the portion of land in respect of which they are appointed for a burial ground for burying the dead and the land so vested in them together with all erections thereon and the rightseasements and appurtenances to the same belonging shall remain vested in the said trustees and their successors for ever upon the trusts and for the purposes and subject to the provisions of this Act.”

247 The plaintiffs emphasised that no longer was there stated to be a restriction to the burying of the dead of the particular denomination. 248 Because the existing trustees were deemed to have been appointed under the Necropolis Act 1901, s 12 applied to the land set aside for a Roman Catholic cemetery. The plaintiffs submitted that it “had the effect of subjecting that land to ‘the trusts and purposes … of this Act’ ”. They said that “[a]lthough s 12 refers to trustees having land vested in them and holding land ‘for a burial ground for burying the dead’, the provisions of the 1901 Act outlined above indicate that the ‘trusts and purposes … of this Act’ were the use of land by the relevant denomination as a burial ground for burying the dead” (plaintiffs’ emphasis). 249 The plaintiffs submitted that:

“following the passage of the 1901 Act, the denominational trustees continued to hold their respective portions of the Cemetery on a charitable trust, the purpose of the trust now being the use of land by the relevant denomination as a burial ground for buying the dead. The purpose was no longer confined to burying the dead of the relevant denomination.” (Emphasis added)

250 The Attorney disagreed, submitting that the purpose of the charitable trust did not thereby change, and making the following contentions:

• (1)

  the generic phrase “for a burial ground for burying the dead” naturally described the denominational and non-denominational burial grounds at the cemetery;

• (2)

  section 7 expressly continued the existing dedications, and by referring to the lands “continu[ing] to be so dedicated” and “so set apart” in s 7(1) and (2) and (3) the restrictions on the use of the land effected by the dedications and settings apart continued;

• (3)

  section 12 referred to “the” trusts and “the” purposes, which pointed to definite trusts and purposes, defined in the proclamations;

• (4)

  the phrase “burial ground for the use of [a] denomination” bore the same meaning as the wordier phrases that appeared in the 1867 and 1893 Acts;

• (5)

  the purpose supported this construction, as “there is no obvious rationale for Parliament establishing a general cemetery with separate, denominational burial grounds where the dead were, nevertheless, to be buried on an interdenominational basis”; and

• (6)

  the Attorney relied on the certification by the Commissioner for the Consolidation of the Statute Law that “this Bill solely consolidates, and in no way alters, adds to, or amends the law as contained in the Statute therein consolidated”.

251 The principal point made by the plaintiffs in reply was that the continuation by s 7 of the dedications made by the proclamations in 1868 and 1889 was not to the point, because that conflated the dedication of the whole of the Rookwood land with the setting apart of the portions to be vested in trustees on separate and more specific trusts. The plaintiffs also took issue with the proposition that the change in purpose was at odds with the legislative history. They said “the key point which emerges from that history is the insistence of certain denominations that each denomination have its own separate burial ground with legal title thereto. The changed purpose for which the plaintiffscontend is consistent with that history”. They sought to diminish the effect of the Commissioner’s certificate which stated that the Necropolis Act 1901 did not alter or amend the law, saying that that could not control the meaning of the new language. They added that “If anything, the fact that the 1901 Act is a consolidating statute suggests it should be construed according to its own terms and not by reading into it language used in earlier, repealed legislation”. 252 I think the construction propounded by the Attorney is correct. Without criticising the ingenuity that has been devoted to the submissions on construction from both sides, I think the position is straightforward. 253 The starting point is the long title of the Necropolis Act 1901, which is “An Act to consolidate the Acts relating to the establishment and regulation of the Necropolis”. That is confirmed by the Commissioner’s certificate that the Bill “solely consolidates, and in no way alters, adds to, or amends the law”. On its face, it is unlikely that the consolidating statute altered the charitable purpose in the way the plaintiffs contend. 254 True it is that the language changed. But the ordinary principle that a change in language entails a change in legal meaning does not apply to consolidating legislation: that is the point of the statute being consolidating, which merely expresses more clearly a regime which is unchanged in substance. 255 Further, there is an evident explanation for the shift in language. The consolidator was seeking to simplify the legislation. That could be done by using the same language to describe the purpose of both the denominational and the general portions of the cemetery. To do so it was necessary to omit the words “burying the dead of such denomination”, because those words were inapplicable to the general portion. 256 If textual confirmation of the above were needed, it may be supplied by observing other language in the statute, notably in s 7 and s 12 referring to “the” existing dedication and settings apart, and “the” trusts and purposes. Those references are impossible to reconcile with a change in the purpose of the charitable trust. 257 Finally, everything that I have learned in the course of preparing this judgment in connection with the history of Rookwood Cemetery, and cemeteries in colonial New South Wales more generally, points to this being an area where very strong views were held by persons who were more than willing to express them forcefully. I see no basis for construing the consolidating statute such that a very significant change in the charitable purpose was effected without any indication that that was occurring.

Conclusion and orders

258 For those reasons, declarations in the form sought by the Attorney General should be made. Neither side sought costs. Accordingly, I propose the following declarations be made:

1. Prior to 1 July 2018, the first plaintiff held the Catholic portions of Rookwood Cemetery (the Catholic Cemetery) subject to a charitable trust for the purpose of using the Catholic Cemetery as a burial ground for burying the dead of the Roman Catholic denomination.

2. Between 1 July 2018 and 29 February 2024, the first plaintiff, as the transitional reserve trust managing the Catholic Cemetery, has held and will continue to hold the proceeds of the Catholic Cemetery (other than trust land) subject to a charitable trust for the purpose of using theCatholic Cemetery as a burial ground for burying the dead of the Roman Catholic denomination.

3. On and from 29 February 2024, the Crown land manager of the Catholic Cemetery will continue to hold the proceeds of the Catholic Cemetery (other than trust land) subject to a charitable trust for the purpose of using the Catholic Cemetery as a burial ground for burying the dead of the Roman Catholic denomination.

So ordered

Solicitors for the plaintiffs: Mills Oakley. Solicitors for the defendant: Crown Solicitor (NSW). OJ RONAN BARRISTER