Christ College Trust v City of Hobart

[1928] HCA 1

308 HIGH COURT

[1928.

[HIGH COURT OF AUSTRALIA, j

CHRIST COLLEGE TRUST . . . .

Appellant:

THE MAYOR, ALDERMEN AND CITIZENS ^

R espondent.

OF THE CITY OF HOBART

. )

ON APPEAL FROM THE SUPREME COURT OF

TASMANIA.

H C OF A Local Oovernment—Rates—Exemption— Building used solely for charitable jrurposes

—Construction— Hobart Corporation Act 1893 (Tas.) (57 Viet. No. 11), sec. 116* — Hobart Corporation Act 1921 (Tas.) (12 Geo. V. No. 24), sec. 18*—Hobart H o b a e t , Water Act 1893 (Tas.) (57 Viet. No. 25), sec. 60*— Christ College Act 1926 (Tas.)

1928.

Feb. 13, 14,

(17 Geo. V. No. 66)— Statute 43 Eliz. c. 4.

Held, th a t in sec. 116 of the Hobart Corporation Act 1893 (Tas.) (as amended

Knox C.J.. by see. 18 of the Hobart Corporation Act 1921 (Tas.) ) and in sec. 60 of the

Higgins and

(Javan Duffy JJ.Hobart Water Act 1893 (Tas.) the words “ charitable purposes” should be construed ejusdem generis with hospital and benevolent asylum and not in their technical sense.

Held, therefore, th a t buildings used solely for educational purposes were not exempted from rates by those sections even if such purposes were charitable in the technical sense.

Decision of the Supreme Court of Tasmania (Full Court) affirmed.

asylum, or other building used solely

* By sec. 116 of the Hobart Corpora­ tion Act 1893 (Tas.) (as amended by sec.

for charitable purposes : Any public

18 of the Hobart Corporation Act 1921 library or public museum : Any public

(Tas.)) it is provided tha t “ The school under the

Education A ct: Any

Municipal Council shall not levy or church, chapel, or other building used

raise any rate whatever in respect of

solely for public worship.”

any of the properties hereinafter men­

By sec. 60 of the Hobart Mater Ad

tioned (that is to say)—Any lands or 1893 (Tas.) it is provided that "No

buildings the property of and occupied rate shall be made or levied under this

on behalf of Her Majesty : Any lands Act in resj)ect of . . . any hos­

or buildings the property of, and pital, benevolent asylum, or other

occupied on behalf of, the University building used solely for charitable

of Tasmania : Any hospital, benevolent

purposes ” &c.

40 C.L.R.l OF AUSTRALIA.

309

A p p e a l from the Supreme Court of Tasmania.

H. C. OF A.

1928.

The Christ College Trust, which was incorporated under the

Ch r is t (’OLLEGE

Christ College Act 1926 (Tas.), appealed to a Court of Appeal

constituted under the Annual Values Assessment Act 1911 (Tas.)

T r u s t

V.

from the assessment of the value of certain properties within the

H o b a r t Co r p o r a ­

CHty of Hobart. The substantial ground of the appeals was that

t io n .

the buildiugs on the properties were used solely for charitable purposes within the meaning of sec. 116 of the Hobart Corporation Act 1893 (Tas.) and sec. 60 of the Hobart Water Act 1893 (Tas.) and were therefore exempt from rates. Before the appeals came on for hearing they were removed by certiorari into the Supreme Court. On the return of the writ of certiorari before the Full Court a statement of facts was agreed to by the parties which, so far as is material, was to the following effect:—Three of the properties were portion of the Hutchins School, and were under the control of the Board of Management of the Hutchins School and the buildings thereon were used solely for school purposes, such as class rooms, boarding house, laboratories, masters’ sitting rooms, clfices and instructional workshops. The fourth property consisted of a cottage and land, the cottage being occupied by a caretaker and the land being used as a playground for the scholars at the Hutchins School. The Hutchins School was registered as a public school under the Registration of Teachers and Schools Act 1906 (Tas.), and belonged to the corporation of Christ College Trust and was managed by the Board of the Hutchins School as provided by the Christ College Act 1926 and in accordance with the provisions of a deed of trust dated 16th December 1847. The income of the Hutchins School was derived mainly from fees charged to the parents or persons in loco parentis of pupils at the School, but such income was not of itself sufficient to enable the School to be carried on under its existing conditions as to efficiency and status without outside assistance. Such outside assistance was obtained partly from assets of the School itself, partly from income from Christ College Trust as set out in the Christ College Act 1926 and partly from subscriptions and donations for School purposes. The Full Court held that the buildings were not used solely for charitable

310 HIGH COURT

[1928.

H.	C.OF A.purposes within the meaning of sec. 116 of the Hobart Corporation
1928. Act 1893 or sec. 60 of the Hobart Water Act 1893, and therefore

Ch b is tmade an order that [the properties in question were ratable and

Co l l e g e

T r u s t

that it be remitted to the Commissioner of the Court of Appeal to

V.

H o b a r tfix the amount at which each property should be rated.

C o r p o r a ­

From that decision the Christ College Trust now, by special leave, appealed to the High Court.

t io n .

At the hearing of the appeal it was admitted that the Christ College Trust was a charity within the meaning of 43 Ehz. c. 4.

W. F. Dennis Butler (with him A. Inglis Clark), for the appellant. The word “ charitable ” in sec. 116 of the Hobart Corporation Act 1893 and sec. 60 of the Hobart Water Act 1893 is used in its technical sense, there being no context which requires any other meaning to be given to it {Chesterman v. Federal Commissioner of Taxation (1)). Where technical words are used in a statute the technical meaning must be given unless there is a controlling context which compels the Court to give those words another meaning. I t is not sufficient that there should be an indication that another meaning might be intended {Young Men's Christian Association v. Federal Commis­ sioner of Taxation (2); Goldsbrough Mort & Co. v. Tolson (3)). The fact that particular classes of schools are exempted by sec. 116 does not show that schools were not intended to be included in the words “ charitable purposes ” {Commissioners for Special Purposes of Income Tax v. Pemsel (4) ). The ejusdem generis principle should not be applied {R. v. Special Commissioners of Income T a x ; Fx parte University College of North Wales (5); Clancy v. Commissioner of Valuation (6) ).

Russell Young and Griffiths, for the respondent, were not called

npon.

Cur. adv. vult.

(1) (1923) 32 C.L.R. 362, a t p. 376 :

(3) (1909) 10 C.L.R. 470, at p. 478.

(1926) A.C. 128 ; 37 C.L.R. 317.

(4) (1891) A.C. 531, at p. 589.

(2) (1926) 37 C.L.R. 351, a t pp. 358,

(5) (1909) 100 L.T. 585.

360.(6) (1911) 2 I.R. 173, at p. 186.

40 C.L.R.] OF AUSTRALIA.

311

The following written judgments were delivered’:—

H. 0. OF A.

1928

K n o x C. J.

The decision in this case depends on the meaning to be

Co l l e g eCh r is t

given to the words “ charitable purposes ” in sec. 116 of the Hobart

Corporation Act 1893 (57 Viet. No. 11), and to the same words in section

T r u st

V.

60 of the Hobart Water Act 1893 (57 Viet. No. 25).

The general rule,

H o b a r t Co r p o r a ­

as stated by Lord Wrenbury, speaking for the Judicial Committee t io n .

in Chesterman’s Case (1), is that the word “ charitable ” must be

Feb. 15.

given its technical legal meaning unless a contrary intention appears in the statute. Accepting that rule I have come to the conclusion that in the case of both the statutes now in question a contrary intention does sufficiently appear. The words of the provision now imder consideration are “ any hospital, benevolent asylum, or other building used solely for charitable purposes ” and sec. 116 includes other provisions exempting “ any public library or pubhc museum ” and “ any public school under the Education Act.” I gather from these provisions, taken as a whole, that the words “ charitable purposes ” were used in their popular rather than in their technical legal sense. In the sentence in which they occur they relate to a building other than a hospital or benevolent asylum, but used, as they are, for charitable purposes, that is to say, for the rehef of physical or mental suffering or pecuniary need. This view is confirmed by the inclusion in the section of the exemptions above referred to and the exemption relating to churches and by the fact that by an amending Act an exemption in favour of the University was inserted, which would be wholly unnecessary if “ charitable ” were used in its EUzabethan or technical sense. Further, in the Corporation Act the express exemption of certain schools tends to show that the intention of Parliament was to limit the exemption to those schools, and although this exemption is not repeated in the Water Act I can find no sound reason for attaching a different meaning to the word “ charitable ” in two statutes passed almost simultaneously and dealing with matters of the same kind.

For these reasons I am of the opinion that the appeal should be dismissed.

(1) (1920) A.C., at p. 131 ; 37 C.L.R.. a t p. 319.

312 HIGH COURT

[1928.

H.	C. OF A.Higgins J. The sole question finally left for our determination,
1928. after hearing the able argument of Mr. BiUler, is whether (a) in

Ch r is tsec. 116 of the Hobart Corporation Act 1893 (as amended by the

C o l l e g e

T r u s t

Act 12 Geo. V. No. 24, sec. 18), (b) in sec. 60 of the Act 57 Viet.

V.

H o b a r tNo. 25 as to the Hobart water supply, the words “ charitable

C o r p o r a ­

t io n .

purposes ” are to be given the technical sense of the Statute of

Higgins J.Bhzabeth, or are to be treated as having a more limited meaning.

If the technical sense be not accepted, the appellant Trust must fail in its appeal. I should have been doubtful, having regard to the meagre provisions of the declaration of trust of 1847 and to the curious financial provisions of the Christ College Act 1926, whether the Trust ought to be treated as a charity even within the Statute of Elizabeth, but the respondent concedes that it is. I shall assume everything in favour of the Trust except as to the meaning of “ charitable purposes ” in the sections in question.

I take my standing point—as Lord Wrenbury took his in expressing the opinion of the Judicial Committee in the recent case of Chesterman V. Federal Commissioner of Taxation (1)—in the words of Lord Macnaghten in Pemsel’s Case (2) : “ In construing Acts of Parhament it is a general rule . . . that words must be taken in their legal sense unless a contrary intention appears.”- The legal sense of “ charitable purpose ” is, of course, the wide technical sense of the Statute of Elizabeth ; but I have come to the conclusion that in both of these Acts the contrary intention does appear. I thought, in Chesterman’s Case (3), with the Chief Justice, that the contrary intention did not appear, and that view was affirmed by the Judicial Committee. In this case, however, I see no alternative open to me, on an examination of all the cases of exemption from general rates in sec. 116, but to decide that the word “ charitable ” is used in a more restricted sense.

The words of sec. 116 are :—“ The Municipal Council shall not levy or raise any rate whatever in respect of any of the properties hereinafter mentioned (that is to say) ;—Any lands or buildings the property of and occupied on behalf of Her Majesty : Any lands or buildings hired or used by the Government of Tasmania for any

(1) (1926) A.C., a t p. 131 ; 37 C.L.R.,

(2) (1891) A.C., a t p. 580.

a t p. 319.

(3) (1923) 32 C.L.R. 362.

40 C.L.R.] OF AUSTRALIA.

313

public purpose : Any hosjyital, benevolent asylum, or other building

H. C. O F A.

1928.

used solely for charitable purposes : Any public library or public

museum : Any public school under the Education A c t: Any church, Ch b is t

COUT.F.GE

chapel, or other building used solely for pubhc worship.”

T k u s t

V.

In the present case, the claim for exemption is made for a school founded in 1847—a school which was started in connection with the

H o b a b t CoBPOBA-

TION.

Church of England, without any purpose of profit (as I assume in

Higgins J.

favour of the appellant). Such a school would probably prima facie come under words such as “ building used solely for charitable purposes.” But the Legislature has separately apphed its mind to schools, and has confined its exemption as to schools to “ any pubhc ” (State) “ school under the Education Act.” This school is not a State school, or in any way under the Education Act. What was the use of this limitation as to schools if the Legislature meant to include other schools by virtue of the words “ building used solely for charitable purposes ” ? Moreover, there is one common characteristic of all the properties made exempt from rates by the section, and that is that they are for some pubhc purpose ; but the word “ pubhc ” is not here actually used in relation to a hospital or benevolent asylum “ or other building used . . . for charitable purposes ”—probably because in the Australian Colonies (now States) the “ hospitals ”—if the term be used simpliciter—and benevolent asylums are all pubhc—used, not for gain, but for the benefit of the pubhc. Incidentally, I do not think that a private hospital, or a private benevolent asylum (if there are any such asylums) is meant to be exempted—they would be usuaUy for gain. There is, on the other hand, one common characteristic of hospitals and benevolent asylums, and that is that they are for persons suffering either in body or in pocket; and when we find such buildings exempted, and any “ other buildings used solely for charitable purposes,” the ejusdem generis rule is surely apphcable so as to limit the “ charitable purposes ” to similar buildings, buildings for the rehef of suffering. One cannot treat this school as an institution for the rehef of suffering. I t is not necessary for me to define exhaustively all the institutions, all the buildings, which are covered by this exemption, but it certainly does not cover schools for healthy boys. Here the exemption is claimed for playgrounds

314 HIGH COURT

[1928.

H. C. o r A.

and grounds not used for buildings, although the Legislature is

1928.

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careful in this section to confine it to buildings—not to “ lands or

Ch b is tbuildings ” as in the preceding exemptions.

Co l l e g e

T r u s t

Another matter which weighs with me strongly against attributing

V.

H o b a r t

to the Legislature the meaning of charity within the Statute of

C o r p o r a ­

t io n .Elizabeth is that sec. 116 contains, in other of the express categories

of exemption, purposes which would be charities within the Statute

Higgins J.

—e.g., “ any public library or public museum: . . “ any church, chapel, or other building used solely for pubhc worship.” This is not a case of categories merely overlapping, as in Chesterman’s Case (1). One can hardly conceive of any pubhc hbrary that would not be a charity, in the educational aspect of charity. Finally, when the Legislature amends the Act in 1921 (12 Geo. V. No. 24, sec. 18) it inserts a new specific exemption—“ any lands or buildings the property of, and occupied on behalf of, the University of Tasmania,” although a University of this character would surely be a charity within the Statute of Ehzabeth. Singly taken, these considerations may not be conclusive. I quite recognize the force of the view that founders may use words which are not mutually exhaustive in denotation, expressions which overlap, and that the principle as to ejusdem generis may easily be pushed too far. But all these circumstances combined show, to my mind, that the words “ charitable purposes ” are not used in the sense of the Statute of Ehzabeth, or in any sense analogous thereto, and that the intention of the Legislature was to confine the exemption to narrovrer Emits (I do not say to eleemosynary hmits).

As for the Act 57 Viet. No. 25, that which relates to the Hobart water supply, the exemptions which are prescribed by sec. 60 are not the same as in the Act 57 Viet. No. 11 ; but they significantly include the precise exemption in question, that contained in the Act No. 25 : “ Any hospital, benevolent asylum, or other building used solely for charitable purposes.” These two Acts became law on the same precise date—14th November 1893 ; and it is a fair presumption that the Legislature used in the same sense the same words relating to a similar subject affecting the same City of Hobart on the same day. If in the Act No. 11 it is not meant to exempt

(1) (1923) 32 C.L.R. 362.

315

4( > C.L.R.] OF

AUSTRALIA.

schools under these words as to “ charitable purposes,” neither was

C. o f a .

J. ̂ ^O*

it meant to exempt schools under the words in Act No. 25.

Ch b is t

I am of the opinion that the appeal must be dismissed.

Co l l e g e

T r u s t

V.

Gava n D u f f y J.

I agree that the appeal should be dismissed.

H o b .obt Co r p o r a ­

Appeal dismissed %oith costs.

t io n .

Solicitors for the appellant, Butler, McIntyre & Butler. Solicitors for the respondent, Russell Young & Butler.

B. L.

[HIGH COURT OF AUSTRALIA.]

PHYLLIS MAUDE CAROLINE FLORENCE )

A p p l ic a n t ;

J O N

E S ....................................................\

LESTER JOHN JONES .

R e s p o n d e n t .

Execution of Process— Writ of attachment—Leave to execute in another State— H. C. o f A.

Application to High Court after refusal of application by Supreme Court—

1928.

Discretion— Service and Execution of Process Act 1901-1924 (No. 11 of 1901—

No. 2fi of 1924), sec. VJ— The Constitution (63 cC- 64 Viet. c. 12), secs. ' I klbournk,

51 (XXIV.), (XXV.), 118.

^'^^Mar ' '

All application pursuant to sec. 19 of the Service and Execution of Process

Act 1901-1924, for leave to execute in Victoria a writ of attachm ent issued Lsaacs, Higgins,

out of the Supreme Court of New South Wales, having been refused by ^Sterke^U

the Supreme Court of Victoria, an application under the same section was made

for leave of a Justice of the High Court to execute the writ in any State other

than New South Wales.

------

Held, by Knox C.J., Isaacs, Powers and Starke J J ., that the High Court ought not to make an order which had been refused by a Court of co-ordinate jurisdiction in the matter on facts identical with those brought before the High Court.

Per Htggins J. : The High Court should not refuse to hear the appboation on its merits, as the order applied for was not the same as that refused by the Supreme Court.