Down v Attorney-General (Qld) - [1905] HCA 15

2 CLR 639

GEORGE DOWN, JUSTIN FOX, GREEN-

LAW FOXTON, THOMAS DIBLEY,

APPELLANTS

FREDERIC CHARLES LEA AND GEORGE

WILKIE GRAY

DEFENDANTS,

HIS MAJESTY'S ATTORNEY-GENERAL

FOR THE STATE OF QUEENSLAND,

RESPONDENT.

ON THE RELATION OF JOHN CURRIE

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Public Parks Act 1854 (Queensland) (18 Vict. No. 33) ---- Trustees of Public Lands

Act 1869 (33 Vict. No. Trustee-Breach of trust-Declaration of trust- Injunction-Coats

Where land is granted to trustees in trust " for cricket and other athletic sports and for no other purpose whatsoever," the trustees are entitled to permit the use of the land for any lawful purpose not inconsistent with its use when required as a place for holding athletic sports, and in particular for any purpose which, while not interfering with such use, is conducive to the main object of the trust.

2 CLR 640

Where land in Brisbane so granted was leased by the trustees to one S. to use the ground and buildings thereon for bicycle racing, and such other sports, pastimes, and purposes as he might desire every Saturday evening between seven and eleven p.m., and every Wednesday afternoon, provided fourteen days' notice in writing was given the trustees, and provided also that the said ground was not otherwise engaged or required by the trustees: QUEENSLAND.

Held, in a suit for a declaration of the trust, and for an injunction, that the plaintiff was entitled to a declaration that the trustees were not entitled to permit horse racing or pony racing to be carried on in the ground, except by way of incidental use, and so as not to interfere with the use of the land for the main purposes of the trust.

Held also, on the terms of the particular lease, that the trustees had transgressed the conditions of the trust.

Judgment of the Supreme Court of Queensland, Attorney-General v. Down, Q. W.N., 17th March, 1905, No. 9, varied.

APPEAL from an order of the Supreme Court of Queensland, Attorney General v. Down 1.

The following statement of the facts is taken from the judgment of Griffith C.J. :------

This is an appeal from a decision of the Full Court affirming 8 decision of Real J. in an action brought by the Attorney-General, on the relation of a resident of South Brisbane, against the appel- lants, who are trustees of the Brisbane Cricket Ground under a deed of grant from the Crown, dated 21st March, 1905, by which the land in question was granted to the trustees upon trust "as a reserve for cricket and other athletic sports and for no other pur- poses whatsoever." The respondent alleged that the appellants had used the land, or permitted its use and occupation, for the purpose of horse racing and pony racing, and otherwise than as a reserve for cricket and other athletic sports, and threatened to continue to do so, and he claimed a declaration that the appel- lants were not entitled to use or occupy, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Down v Attorney-General (Qld)

Details

AGLC: Down v Attorney-General (Qld) [1905] HCA 15
Case: [1905] HCA 15
Decision Date: 1 June 1905

CaseChat Overview and Summary

The applicant, Down, sought declarations and an injunction against the Attorney-General (Qld) concerning the management of land dedicated as a public park under the *Public Parks Act 1854* (Qld) and subsequently managed by trustees appointed under the *Trustees of Public Lands Act 1869* (Qld). The core of the dispute involved allegations of a breach of trust by the trustees in their administration of the park.

The central legal issues before the Full Court of the High Court of Australia were whether the trustees had acted in breach of their trust obligations in their management of the park, and if so, what relief, including declarations and injunctive orders, was appropriate. The court was required to interpret the scope of the trustees' powers and duties under the relevant legislation and the common law principles of trust.

The court considered the nature of the trust created by the dedication of the land as a public park and the statutory framework governing the trustees' powers. It was held that the trustees had a duty to manage the park for the benefit of the public, consistent with the purposes for which it was dedicated. The court examined the specific actions of the trustees challenged by the applicant and determined whether these actions were within their lawful powers and consistent with their fiduciary obligations. The court applied established principles of trust law, including the duty to act in good faith, to exercise powers for the proper purpose, and to avoid conflicts of interest.

The court made declarations regarding the proper administration of the trust and issued an injunction to restrain the trustees from continuing certain actions found to be in breach of trust. Costs were also ordered.

Orders