McLachlan & South Ozz Shelter v Hamilton - [2020] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MCLACHLAN & SOUTH OZZ SHELTER v HAMILTON
[2020] SASC 126
Judgment of The Honourable Justice Peek
7 July 2020
CHARITIES - ADMINISTRATION AND CONTROL BY COURT - PARTIES - OTHER PARTIES - RIGHTS - TO BRING PROCEEDINGS
CHARITIES - ADMINISTRATION AND CONTROL BY COURT - PARTIES - ATTORNEY-GENERAL - WHEN NECESSARY OR PROPER PARTY
CHARITIES - CHARITABLE PURPOSES - OTHER PURPOSES BENEFICIAL TO PUBLIC - GIFT FOR ANIMAL WELFARE
Appeal against a decision of a Magistrate.
The first appellant (McLachlan) owned land at Moorook where she (with other volunteers) conducted activities directed to the welfare of dogs and cats. The site of those activities is referred to as “the shelter”. The respondent (Hamilton) volunteered to assist McLachlan by creating and operating a website at Adelaide to solicit public donations to help fund those activities. The dispute concerns monies donated by members of the public through the website into Hamilton’s bank account. McLachlan and the second appellant (South Ozz Shelter) allege that between 24 May 2010 and 31 July 2013 $114,579.77 was paid into Hamilton’s bank account of which she wrongly retained more than $75,000.
The Magistrate held that the payments into Hamilton’s bank account were gifts for a charitable purpose and that Hamilton was a charitable trustee of the legal rights to require the bank to pay the total credit funds to herself or to someone nominated by her (the bank account legal rights). Accordingly, neither appellant had standing in the Magistrates Court to enforce the terms of the trust because s 60 of the Trustee Act 1936 requires that applications in relations to alleged breaches of charitable trusts must be made to the Supreme Court.
On appeal, the appellants contend that the Magistrate should have found that Hamilton held the bank account legal rights as constructive trustee on behalf of either McLachlan or South Ozz Shelter as the true trustee of any charitable trust and that the Magistrates Court had jurisdiction to hear and determine the proceedings.
Held, dismissing the appeal:
1. The bank account legal rights were impressed with a charitable trust for the purpose of funding activities at the shelter and Hamilton held those legal rights as trustee of a charitable trust.
Trustee Act 1936 (SA) s 60; referred.
Attorney-General (NSW) v Adams (1908) 7 CLR 100; Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209; Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane (1977) 136 CLR 353; Attorney-General SA v Bray (1964) 111 CLR 402; Black v S Freedman & Co (1910) 12 CLR 105; Eurella Community Services Inc v Attorney General for the State of NSW [2010] NSWSC 566; Joyce v Ashfield Municipal Council (1959) 4 LGRA 195; Latimer v Commissioner of Inland Revenue [2004] 1 WLR 1466; [2004] 3 NZLR 157; McGarvie Smith Institute v Campbelltown Municipal Council [1965] NSWR 1641; Raftland Pty Ltd v Commissioner of Taxation (2006) 227 ALR 598; Shaw Building Group Pty Ltd v Narayan (No 2) [2015] FCA 585; Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406; Stratton v Simpson (1970) 125 CLR 138; The Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531; considered.
2. Part 4 of the Trustee Act 1936 confers upon the Supreme Court exclusive jurisdiction concerning charitable trusts.
3. The Magistrates Court is not a “Court of equity” with jurisdiction to adjudicate upon a dispute concerning the administration of a charitable trust. The Magistrates Court Act s 8(1) only confers an equitable jurisdiction on that court by reference to the general jurisdiction delineated by s 8(1) and which is not inconsistent with the exclusive jurisdiction concerning charitable trusts conferred on the Supreme Court by the Trustee Act 1936.
4. The standing that the appellants may have is to bring an application pursuant to s 60(2)(G) of the Trustee Act 1936.
Acts Interpretation Act 1915 (SA) s 19; Charitable Trusts Procedure Act 1922 (SA); Magistrates Court Act 1991 (SA) s 8; Trustee Act 1936 (SA) ss 56, 60, 64, 65, 66, 67; referred.
Anglican Development Fund Diocese of Bathurst v Palmer (2015) 336 ALR 372; Carneiro & Anor v Robinson & Ors (No 2) [2005] SADC 151; Conroy’s Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd (2007) 97 SASR 14; Conroy’s Port Pirie Abattoirs v Channel Seven Adelaide (No 3) [2005] SADC 110; Federal Commissioner of Taxation v Bargwanna (2012) 244 CLR 655; Latimer v Commissioner of Inland Revenue [2004] 1 WLR 1466; [2004] 3 NZLR 157; Metropolitan Petar v Mitreski [2001] NSWSC 976; Num-Hoi, Pon-Yu, Soon-Duc Society Inc v Num Pon Soon Inc (2001) 4 VR 527; Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439; Sarris and Guise v Penfolds Wines Pty Ltd [1962] NSWR 801; Sengthong v Lao Buddhist Society of NSW Inc [2016] NSWSC 1408; Tomasevic v Jovetic [2011] VSC 131; Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575; Victor Harbor City v Roeger (2002) 82 SASR 140; discussed.

MCLACHLAN & SOUTH OZZ SHELTER v HAMILTON
[2020] SASC 126
Magistrates Appeal
PEEK J.
Introduction

At relevant times, the first appellant, Ms Lola McLachlan (McLachlan), owned a property at Moorook and activities by McLachlan (and some volunteers) directed to the welfare of dogs and cats were performed there. The site of the performance of those activities has been referred to as ‘the Moorook Animal Shelter’ or ‘the shelter’. I will use the term ‘the shelter’ in that sense and I will refer to those activities as ‘activities at the shelter’.
The respondent, Ms Helen Hamilton (Hamilton), knew McLachlan and volunteered to establish and operate a website to solicit public donations to assist funding activities at the shelter.
The appellants’ claims are said to concern monies donated by members of the public between 24 May 2010 and 31 July 2013 through a website constructed and operated by Hamilton into the ANZ “Progress Saver” bank account 539106669 in the name of the respondent (Hamilton’s bank account).[1] The appellants asserted that $114,579.77 was paid into Hamilton’s bank account, of which she wrongly retained more than $75,000. Their case rested on the report of a forensic accountant, Ms Simpson, dated 11 July 2018 (the Simpson Report), together with her evidence at trial, which examined the operation of the above bank account and other matters.
[1] Hamilton also had an account (the Paymate account) which for logistical reasons initially received funds donated to the website and then transferred them to the Progress Saver account. It is not necessary to refer to that logistical matter further.
The second appellant, South Ozz Shelter (SOS), was only incorporated near the end of the above period and for all intents and purposes the monies referred to by the appellants were deposited into Hamilton’s bank account prior to its incorporation. Further, the solicitors for the appellants admitted that “the shelter was not registered as a charity until 4 March 2014”.[2]
[2] Exhibit D4.
It is pleaded in the third amended statement of claim (the claim) that the police laid charges against Hamilton relating to allegations of misappropriation of monies and that the charges were later dismissed.
The judgment of the Magistrate
The background facts are summarised by the Magistrate as follows:
1. An animal shelter known as the Moorook Animal Shelter (the shelter) has been operated on Ms McLachlan’s farm at Moorook for many years. Ms McLachlan is the first plaintiff. The second plaintiff, South Ozz Shelter (charity licence No: CCP 3261), is an incorporated charitable institution that trades as the Moorook Animal Shelter. South Ozz Shelter was incorporated on 17 June 2013.
2. The defendant, Ms Hamilton volunteered for the shelter and established a website to promote the shelter. She set up a facility on the website whereby members of the public could make donations to the shelter. The donations were made online and were paid into a bank account (Progress Saver Account) in the name of and operated by Ms Hamilton. The plaintiffs claim that between 24 May 2010 and 31 July 2013 inclusive, $114,579.77 was paid into the Progress Saver Account and Ms Hamilton retained $75,117.77 of the funds for herself.
3. Ms Hamilton denies that she retained any money for her own purposes. Ms Hamilton admits that she transferred money from the Progress Saver Account to accounts in which she had a personal interest, but says that such money was transferred for the purpose of making payments of expenses for the benefit of the shelter, for reimbursing herself in respect of expenses she incurred for the benefit of the shelter, and for making cash payments at Ms McLachlan’s direction.
4. Many of the facts, including the various bank transactions, were admitted by Ms Hamilton. The main areas of dispute are whether Ms Hamilton incurred certain expenses on behalf of the shelter and whether she was entitled to be reimbursed for those expenses.
5. Ms Hamilton denies that either plaintiff has any legal or equitable title to the funds in the account. Ms Hamilton contends that the donations were for the purpose of benefitting the shelter, and the animals in the shelter, not for the benefit of the plaintiffs.
6. Ms Hamilton submits that the plaintiffs consequently do not have standing to recover the monies because the monies were held on trust, either by way of a charitable trust or purpose trust.
…
10. Ms McLachlan does not claim that she had any interest in the funds, nor does she claim any relief. The plaintiffs claim that Ms Hamilton stole the funds from South Ozz Shelter. In the alternative, they claim that Ms Hamilton has been unjustly enriched by retaining funds meant for South Ozz Shelter. In the further alternative, the plaintiffs claim that Ms Hamilton holds the funds on trust for South Ozz Shelter.
Pleading arguments
The Magistrate referred to an objection by the appellants as to insufficient pleading by the respondent. Her Honour overruled that objection and stated:
8. The function of pleadings is to define the issues in the case, and to ensure that the other party has fair notice of the case it is required to meet. Ms Hamilton pleaded, in her defence that South Ozz Shelter did not exist before 17 June 2013 and therefore denied that the Progress Saver Account was held by or for South Ozz Shelter, and denied that any payments were made on behalf of South Ozz Shelter. In paragraph 10A of the second amended defence, Ms Hamilton expressly denied that either of the plaintiffs had any legal or equitable right to the funds in the Progress Saver Account and pleaded that the donations were paid for the purpose of benefitting the shelter, and the animals in the shelter, not for the benefit of the plaintiffs. As such, the plaintiffs were clearly on notice that there was a dispute about the ownership of the donated funds.
9. Further, and contrary to the plaintiffs’ submission in their supplementary written closing address, Ms Hamilton did not admit that South Ozz Shelter owned and operated the shelter; Ms Hamilton admitted that Ms McLachlan was the owner of the shelter located on her farm. Ms Hamilton also admitted that South Ozz Shelter trades as Moorook Animal Shelter, but said that South Ozz Shelter did not exist prior to 17 June 2013. Therefore, Ms Hamilton’s submission regarding the plaintiffs’ standing is not inconsistent with the pleaded defence.
I consider that counsel for Hamilton is correct in his written submission that “the issue of standing was raised squarely on the pleadings. There is no challenge to the Magistrate’s finding that the appellants were clearly on notice that there was a dispute about the ownership of the donated funds”. Indeed, during the course of argument on the appeal, counsel for the appellants stated that “I no longer - although I argued before the Magistrate that Hamilton was precluded from raising this defence - I no longer press that”. In any event, I agree with the Magistrate’s findings in this regard.
The Magistrate’s findings as to the status of the activities at the shelter
The Magistrate made the following findings concerning the status of the activities at the shelter:
12. The shelter was not incorporated nor registered as a charity at the time the donations were received. South Ozz Shelter, which trades in the name of Moorak Animal Shelter [sic], was not incorporated until 17 June 2013. Prior to the incorporation of South Ozz Shelter, Ms McLachlan for many years operated a shelter on her property to take in stray dogs and cats and to rehome them. The operation was known as the “Moorook Animal Shelter”. Over time other members of the community became involved as volunteers and conducted fundraising for the shelter. There is no evidence of any formal structure, membership or governance documents, such as rules or a constitution, prior to the shelter’s incorporation. There appears to have been no separate financial accounting for the shelter. The shelter had no separate legal identity from Ms McLachlan. Ms McLachlan met expenses for the shelter from her personal income, supplemented by fundraising. The evidence at trial did not support (and indeed it was not submitted) that prior to incorporation, the shelter was an unincorporated association.
The Magistrate’s findings as to the status of the donations made by members of the public into Hamilton’s bank account
The evidence is that Hamilton, with the permission of McLachlan, set up a website for the purpose of raising funds to be used for the carrying out of activities at the shelter. McLachlan took no part in the setting up or the running of the website. It was operated by Hamilton at her home in Adelaide and not at the Moorook premises. McLachlan stated in her evidence that for the whole of the period from 2009 to 2013, Ms Hamilton was at the shelter only about three times. As stated at [15] in the appellant’s summary of argument:
It was put to McLachlan in cross-examination “you weren’t even mentioned on the website” (T75:33), to which she responded that she had never looked at the website (T75:34). She confirmed later that she had never seen the website, including the fundraising page (T76:35-38).
No evidence was tendered at trial as to the appearance of the website when downloaded onto a computer screen. The trial was conducted on the basis that the website referred to the Moorook premises and activities at the shelter but it does not appear that either McLachlan or SOS was referred to on the website.
Plainly, the public were solicited by the website to send money to Hamilton’s bank account to be used for a purpose, namely to be used for funding activities at the shelter. Hamilton does not suggest that the funds were intended for herself to use for any purpose other than activities at the shelter and equally clearly, they were not intended for McLachlan. The only way that the application of those funds to activities at the shelter (as distinct from Hamilton using them for other activities) could be enforced was through Hamilton being deemed to be a trustee of a charitable trust.
The Magistrate’s findings concerning the status of the donations made by members of the public in transferring funds though Hamilton’s website into Hamilton’s bank account were as follows:
13. As to the donations during this period, no documentary evidence of the web page seeking donations was tendered at trial. Therefore, it is not clear what potential donors were told about the shelter and the use of donations that were being sought. Ms Hamilton gave evidence that she used “Paymate” to receive the funds as it did not require a Collections for Charitable Purposes Licence number. She used a bank account in her own name.   Ms Hamilton said that a donor would see a donation button and bank account details. Ms Hamilton used her own ABN. There was no evidence that anyone associated with the shelter held a Collections for Charitable Purposes Licence as required by the Collections for Charitable Purposes Act 1939.
14. There is no evidence to suggest that the donors intended to gift money to Ms McLachlan for her own benefit, (indeed that would be unlikely). Similarly, the money was not being given to Ms Hamilton.   The shelter had no separate legal identity at that time and so, in my view, the proper characterisation of the donations is as a gift for a purpose. It is apparently undisputed that the intention of the donors was that the money be used for the purposes of the shelter which was to provide care for animals and to rehome them.
15. It is necessary to consider whether this is a charitable purpose and therefore whether the donations were held under a charitable trust. A non-charitable purpose trust is void. There are some exceptions but they are not relevant in this case.
16. In The Commissioners for Special Purposes of Income Tax v Pemsel,[3] Lord Macnaghten classified charitable trusts into four categories:
1.    The relief of poverty;
2.     The advancement of education;
3.     The advancement of religion; and
4.    Other purposes beneficial to the community not falling into any of the preceding categories.
17. Gifts to animal welfare organisations to maintain homes for homeless, sick, stray or unwanted animals have been held to fall within the fourth class of category listed above.[4] I am satisfied that the donations were made for a charitable purpose and therefore the donations were held by Ms Hamilton under a charitable trust.
[3] [1891] AC 531 at 583.
[4]    Attorney-General SA v Bray (1964) 111 CLR 402 at 425.
The contentions of the appellants on appeal
I have regard to the filed Grounds of Appeal but the appeal was argued somewhat differently and it is best to set out the summary of contentions relied upon in the appellants’ written submissions. The section headed “Contentions on appeal” is (in full) as follows (with letters ‘A’ to ‘F’ added for ease of analysis):
Contentions on appeal
28. Contrary to [17], [22] and [25] of her Honour’s reasons,
A. Hamilton did not hold the funds under a charitable trust.
B. The only person who had power and authority to operate the charity was McLachlan.
C. The funds were donated for the Shelter.
D. If they were not provided to the Shelter by Hamilton, then she held them on trust as is described above in Shaw Building Group Pty Ltd v Narayan (No 2) [2015] FCA 585 at [41].
E. This is not to be conflated, however, with the concept of a charitable trustee and does not mean that McLachlan was not the trustee of any charitable trust.
F. Hamilton (if she held the defalcated funds on trust pursuant to the principle in Shaw) held them as essentially stolen monies, on trust for the true trustee of the charitable body (McLachlan). McLachlan still had standing to pursue Hamilton for recovery of these funds.
29. South Ozz Shelter was the successor to McLachlan, and so is the party that now has standing if McLachlan does not.
Before directly addressing these contentions, I will first refer to some established and uncontested principles of law and equity
Some established and uncontested principles of law and equity
In Raftland Pty Ltd v Commissioner of Taxation, Kiefel J (as the present Chief Justice of the High Court then was) stated:[5]
[65] A trust exists when the holder of a legal or equitable interest in property is bound by an obligation to hold that interest for the benefit of others or for some object permitted by law: K S Jacobs, R P Meagher & W M C Gummow, Jacobs’ Law of Trusts in Australia, 6^th ed, Butterworths, Sydney, 1997, para [101] (Jacobs). It is the essence of a trust that it is recognised by and enforceable in equity: Registrar of the Accident Compensation Tribunal v FCT (1993) 178 CLR 145 at 175. …
[5] (2006) 227 ALR 598, [65].

The more recent edition of the work cited by her Honour, Jacobs’ Law of Trust in Australia, (8th edition) (Jacobs),[6] states the following principles which are well established and uncontested:
[A] trust is a relation between trustee and beneficiary in respect of certain property. More particularly, a trust exists when the owner of a legal or equitable interest in property is bound by an obligation, recognised by and enforced in equity, to hold that interest for the benefit of others, or for some object or purpose permitted by law. [1-01].
There are four essential elements in every form of trust: the trustee, the trust property, the beneficiary or charitable purpose or (exceptionally) non-charitable purpose, and the personal obligation annexed to property. [1-04]
[6] K S Jacobs Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) 1-3.
Counsel for the respondent also cites Jacobs in analysing the essential elements of the subject charitable trust in the following written submissions, with which I agree:
13. The trustee: as per Jacobs [1-05], the trust obligation attaches not only to a nominated trustee (where there is such a nominated trustee) but also “to any person in whom the trust property is vested”. In this matter, there was no nominated trustee. There was no trust deed. There was no evidence that the donors nominated McLachlan as trustee of the funds paid into the Progress Saver Account (or even knew of her existence). The legal title to the funds vested in Hamilton.[7] The trust obligation attached to those funds.
14. Trust property: Jacobs [1-06] confirms that there must be certainty in identification of the property bound by the trust. In this case, the property bound by the trust was the money in Hamilton’s Progress Saver Account.
15. Beneficiary/charitable purpose: a trust must normally have a beneficiary. However, “in the case of public or charitable trusts, there will be no individuals as beneficiaries. There, the beneficiary must be regarded as the charitable purpose to which the trust property is devoted”: Jacobs [1-07].[8] It follows that neither McLachlan, nor the Incorporated Entity, had a beneficial interest in the funds in the Progress Saver Account.
16. Personal obligation annexed to the property: Jacobs [1-10] describes the fourth essential element of a trust as being that the trustee must be under a personal obligation to deal with the trust property for the benefit of the beneficiaries. This should be read, in the case of charitable trusts, as being an obligation to deal with the trust property in accordance with the charitable purpose to which the trust property is devoted. Jacobs states that the obligation must be annexed to the trust property, and describes this as “the equitable obligation proper”, being an obligation which “arises from the very nature of a trust”. As above, the trust property in this case was the money in the Progress Saver Account.
[7] This does not appear to be disputed.
[8] As Dixon J put it succinctly in Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209, 221: “A charitable trust is a trust for a purpose, not for a person”.
These matters are not infrequently discussed in terms of whether funds are “impressed with a charitable trust”.[9] Thus, in the judgment of the Judicial Committee of the Privy Council in Latimer v Commissioner of Inland Revenue (delivered by Lord Millett) it is stated:[10]
38. It is sometimes possible to impress a gift in favour of a recipient which is not itself a charity with an implied trust which limits the application of the property comprised in the gift to charitable purposes. In In re Smith [1932] 1 Ch 153, a gift “unto my country England” was construed as a gift for the benefit of the inhabitants of England and, by analogy with the cases on gifts to a parish, town or city, as impressed with a trust that it be applied for charitable purposes only. In Thellusson v Woodford (1799) 4 Ves 227 a gift over to the Crown was held to be impressed with a charitable trust for the relief of the national debt and so charitable: see also Newland v Attorney-General (1809) 3 Mer 684; Ashton v Lord Langdale (1851) 4 De G & S 402 and Nightingale v Goulbourn (1847) 5 Hare 484; (1848) 2 Ph 594, where a testamentary gift to the Chancellor of the Exchequer was expressly impressed with a trust for Great Britain.
[9] Or, in more complicated cases, "how much of the fund was impressed with a charitable trust and how much was not". Attorney-General (NSW) v Adams (1908) 7 CLR 100, 112 (Griffith CJ).
[10] [2004] 1 WLR 1466.
And in Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane Jacobs J (with whom Stephen, Mason and Murphy JJ J concurred) stated:[11]
It is necessary to make clear this distinction between a gift to an institution impressed with a trust for the application thereof to particular purposes and an absolute gift to such an institution as a result for instance of an appeal by the institution for funds based on its need for moneys in order to carry out a particular project or purpose. The distinction is one which can be difficult in its particular application. Where the expressed purpose is not a charitable purpose the gift will fail if the purpose is held to create a trust unless the trust is found to be a private trust enforceable by the donor until the purpose has been achieved, but meanwhile revocable - the so-called trust of imperfect obligation where there is a resulting trust to the donor if the moneys are not expended. Such a gift may however be construed as an absolute gift motivated by the expressed intention of the institution. However, if the purpose of the gift is a charitable purpose, the charitable purpose will more likely than not impress the subject matter of the gift with a charitable trust.
[11] (1977) 136 CLR 353, 371.
More recently, in the NSW Supreme Court decision in Eurella Community Services Inc v Attorney General for the State of NSW, the short facts were that a public fundraising campaign raised funds to acquire ‘Eurella House’ and it opened on 24 October 1953 operating as a school for “retarded” or “sub-normal” children. Slattery J stated:[12]
55 To answer the question posed, it is necessary to decide whether the funds raised by the appeal in 1953 were “a gift to an institution impressed with a trust for the application thereof to particular purposes” or “an absolute gift to such an institution as a result for instance of appeal by the institution for funds based on its need for moneys in order to carry out a particular project or purpose”: Attorney-General for the State of Queensland v The Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1976) 136 CLR 353, per Jacobs J at 371. Both sides put submissions about the application of Jacobs J’s reasoning in the Brisbane Cathedral Case to the present proceedings. …
…
61 The plaintiff’s submission that the property was purchased with a deposit from the Branch failed to account for how little the Branch actually contributed compared with the support from the public appeal. Even though the appeal began after the exchange of contracts that does not strengthen the inference that the fundraising was for the Branch. The lack of reference to any trust in the appeal materials is not remarkable. Donors gave money directly to the Branch to gain a tax deduction but that is not an answer to the Attorney General’s argument that when that money was received it was already impressed with a trust. Although the funds raised were used to repay the ANZ bank loan the stated purpose of the fundraising was more than just paying off this bank loan.
62 I conclude therefore that the funds raised for the purchase of Eurella House were impressed with a charitable trust.
[12] [2010] NSWSC 566.
Consideration of the appellants’ contentions on appeal
I will consider the appellants’ contentions in the order: 28A and 28C; 28B; 28D; 28E; 28F; 29 as identified at [14].
Contentions 28A: “Hamilton did not hold the funds under a charitable trust” and 28C: “The funds were donated for the Shelter.”
I reject these contentions. I consider the determinations of the Magistrate above to be correct. The subject funds were all donated by members of the public via a website created and maintained solely by Hamilton[13] into Hamilton’s bank account which had been opened by Hamilton, was only ever operated by her; and of which she was the only signatory and only authorised operator. The total credit funds in Hamilton’s bank account from time to time were her “legal property” in the sense that she alone had the right to require the bank to pay over those funds to herself or to some person nominated by her (the bank account legal rights).
[13] McLachlan stated in evidence that she had never seen the website or had anything to do with it.
The subject funds were all paid by members of the public into Hamilton’s bank account, not for the benefit of any person but rather for a charitable purpose. That purpose was “funding activities concerning the care of dogs and cats at the shelter” which is to be carefully distinguished from the appellants’ bald assertion that “The funds were donated for the Shelter”.
Such donations would be void unless the purpose was a charitable purpose. The Magistrate correctly found that it was a charitable purpose and the appellants do not dispute this. The correct conclusion is that Hamilton held the bank account legal rights as a trustee of a charitable trust.
Contention 28B: “The only person who had power and authority to operate the charity was McLachlan.”
This contention confuses the activities at the shelter (here unhelpfully referred to as “the charity”) with the bank account legal rights being held in trust by Hamilton. McLachlan had power and authority to carry on activities at her Moorook property but she had no power or authority to operate Hamilton’s bank account. It is to be stressed that a “charitable trust is a trust for a purpose, not for a person”.[14] At the relevant time, there was no legal entity bound as a trustee to carry on charitable work at the shelter. As Windeyer J observed in Stratton v Simpson:[15]
“… every charitable trust is a trust for a purpose or purposes that are charitable, not a trust for a person or persons, although persons benefit from the fulfilment of the purpose. A body or organization which holds property upon a charitable trust and carries out the trust purposes is commonly called a charitable institution or a charity. It is really but the instrument for carrying a purpose into effect. Confusion can occur from want of remembering this. …”
[14] Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209, 222 (Dixon and Evatt JJ).
[15] (1970) 125 CLR 138, 144.
In similar vein, Else-Mitchell J had stated in McGarvie Smith Institute v Campbelltown Municipal Council:[16]
To speak of institutions or entities as public charities is to introduce a concept which is not only confusing, but inaccurate. Unless an institution or entity, which is loosely called a charity, is bound, as trustee to carry out a public charitable purpose, there is no public charity. If it is so bound, the public charity is not the institution itself, but the institution as an organization subject to an established trust for charitable purposes.
Contention 28D: “If they were not provided to the Shelter by Hamilton, then she held them on trust as is described above in Shaw Building Group Pty Ltd v Narayan (No 2) [2015] FCA 585 at [41].”
[16] [1965] NSWR 1641, 1642. His Honour borrowed the formulation of counsel in Joyce v Ashfield Municipal Council (1959) 4 LGRA 195, 196. It was to be later referred to with approval by Kearney J in Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406, 413.
As the Magistrate found, the subject funds were held on trust by Hamilton for a charitable purpose. The decision of Foster J in Shaw Building Group (Shaw) has no bearing in this case. There, Mr Narayan had been employed by Shaw Building Group (SBG) as its Financial Controller since May 2006 and had systematically stolen monies from SBG throughout the period between November 2008 and late February 2012. He was convicted of, and sentenced to prison for, those misappropriations. Foster J stated:[17]
29. Mr Narayan has never contested the proposition that he stole $987,005.08 from the applicant by orchestrating the payments listed by the applicant in the schedules to its Statement of Claim and has never contested that judgment should be entered against him for an appropriate amount which he accepts must include an amount for pre-judgment interest.
…
35. The starting point for the Court’s analysis of the present problem must be the cause or causes of action relied upon by the applicant against Mr Narayan. The applicant’s pleaded case against him is not a model of clarity. Nonetheless, I consider that the applicant has fairly raised in its Statement of Claim a cause of action against Mr Narayan for money had and received. The applicant should also be taken to be relying upon a claim for compensation for breach of fiduciary duty in the alternative. Finally, the applicant may also have intended to rely upon the tort of deceit and possibly the tort of conversion.
…
37. … The conduct of the defendant imposes a primary restitutionary obligation upon him or her to repay the money which he or she has stolen.
38. A victim of theft may also sue for money had and received a third party who has received the stolen money from the thief without giving valuable and adequate consideration therefor. In the academic writings, such a claim is called a dependent claim. It relies upon the wrong to the plaintiff’s property done by the thief.
39. Being a restitutionary claim, a successful action for money had and received sounds in an order requiring the defendant to repay the amount received by him or her (that is to say, the amount “subtracted” from the plaintiff).
40. Given that I am of the opinion that the applicant in the present case has brought an action for money had and received against Mr Narayan and is entitled to relief in respect of that action, the appropriate order or judgment which prima facie the Court should grant is an order requiring Mr Narayan to repay the full amount stolen by him. [Emphasis added]
[17] [2015] FCA 585.
Given that SBG was originally in possession to the subject monies, it may be understood how it was said in Shaw that the defendant “stole” the monies and would have to “repay” them. Of course, in the present case, such language is quite inappropriate since neither of the appellants were ever in possession of the subject monies.
We then come to paragraph 41 of the judgment of Foster J which is stated to be the paragraph relied upon by the appellants. It is as follows:
41. Another way of addressing the present problem is to regard the stolen funds as trust property held in trust for the applicant by Mr Narayan. This was the approach taken by the High Court in Black v S Freedman & Co (1910) 12 CLR 105 at 108.7–109.6 per Griffiths CJ.
It is important to note that Black v S Freedman & Co (like Shaw) itself involved an employee stealing money from his employer and (in Black) then giving part of that money to his wife. The question in Black was as to whether the wife could be compelled to disgorge that money (or the proceeds of it). Griffiths CJ in fact held that the employee had breached a fiduciary duty to his employer in stealing the money, and in those circumstances, said this in the relevant passage at pages 108–109:[18]
Then the question is whether it can be claimed from her, It is suggested that in following trust property there is a distinction between real and personal property which gets into the hands of a volunteer. But the rule appears to be the same with respect to all kinds of property. It is so laid down in the old case referred to in Lewin on Trusts, and it is so stated in the last edition of White and Tudor in the notes to Dyer v. Dyer. Dealing with this particular point, Sir George Jessel M.R., in the case of In re Hallett’s Estate, said this, amongst other things:— “The modern doctrine of equity as regards property disposed of by persons in a fiduciary position is a very clear and well established doctrine. You can, if the sale was rightful, take the proceeds of the sale, if you can identify them. If the sale was wrongful, you can still take the proceeds of the sale, in a sense adopting the sale for the purpose of taking the proceeds, if you can identify them.” He points out that you very often cannot identify the proceeds. In the present case I think they are sufficiently identified — I mean there is a sufficient primâ facie case of identification in the absence of any explanation. Of course it is not sufficient if the money is taken by the other party bonâ fide for valuable consideration. There the money cannot be recovered back. But it has been laid down in cases decided long ago that if the alienee is a volunteer the estate may be followed into his hands whether he had notice of the trust or not. In the present case, did the wife take the money as a volunteer? In my opinion the proper inference to be drawn from the evidence is that the husband—supposing there was no question of stealing—presented the money to his wife. He intended her, no doubt, to keep it, in one sense, and that it should go to her account at the Savings Bank, where it became under the local law her money for her separate use, but that is quite irrelevant to the question whether she took it as a volunteer or not. I think that where a man pays a large sum of money to his wife, and no more appears, the inference is that it is a present. Therefore the doctrine of equity is applicable. The money is identified; it came into her hands as a volunteer, and she is liable to repay it. … [Citation omitted]
[18] (1910) 12 CLR 105, 108–109.
That is a very different situation to the present case for at least two major reasons. First, Hamilton never “stole” monies from the appellants because they were never in possession of such monies. And second, it cannot be said that Hamilton had a fiduciary duty to the appellants; rather, she held the monies as a charitable trustee, a very different situation.
Contention 28E: “This is not to be conflated, however, with the concept of a charitable trustee and does not mean that McLachlan was not the trustee of any charitable trust.”
Again, I find that the Magistrate is correct. If McLachlan herself received donations made by members of the public for the purpose of rendering care to animals, then she would have held those monies as a charitable trustee. However, that is not to gainsay that Hamilton also held the monies she received via the website into her bank account as a charitable trustee.
Contention 28F: “Hamilton (if she held the defalcated funds on trust pursuant to the principle in Shaw) held them as essentially stolen monies, on trust for the true trustee of the charitable body (McLachlan). McLachlan still had standing to pursue Hamilton for recovery of these funds.”
As explained above, “the principle in Shaw” is no more than a common application of the principle that funds taken from an employer in breach of a fiduciary duty may be recovered back from the employee and, in some circumstances, from third parties to whom the employee has passed them.
As discussed below, the standing that McLachlan may have is to bring an application pursuant to s 60(2)(G) of the Trustee Act 1936 (SA) (the TA).[19]
Contention 29: “South Ozz Shelter was the successor to McLachlan, and so is the party that now has standing if McLachlan does not.”
[19] G E Dal Pont Law of Charity (LexisNexis Butterworths, 2^nd ed, 2017) 355.
Again, as discussed below, the standing that SOS may have is to bring an application pursuant to TA s 60(2)(G).
How may the charitable trust impressed upon the funds in Hamilton’s bank account be enforced?
I turn now to the question as to how may the charitable trust impressed upon the funds in Hamilton’s bank account be enforced. The Magistrate decided this question as follows:
18. Historically, the law has given the Attorney-General the right and duty to enforce charitable trusts. In Commissioner of Taxation v Bargwanna,[20] the High Court quoted Lord Millet in Latimer v Commissioner of Inland Revenue[21] who stated the following general principles regarding charitable trusts:
19. It is of the essence of a charitable trust that it is a trust for the promotion or advancement of social purposes rather than a trust for individual beneficiaries. Of course, individuals may benefit from the application of trust moneys, but they are not, as individuals, the beneficiaries of the trust and may not enforce its terms. If the purposes of the trust are charitable, they may be enforced by the Attorney-General; if they are not charitable then, with certain anomalous exceptions, they are not enforceable and the trust is not valid.[22]
20. It is also the case as submitted by the plaintiffs that a trustee may sue to enforce a trust or recover property without the involvement of the Attorney-General being a party to the proceeding. In Uniting Church in Australia Property Trust (NSW) v Monsen,[23] Rath J stated at 591:
21. It seems to me that the Attorney-General is not a necessary party in proceedings in which an existing charity, whether incorporated or not, is seeking to recover property to which it claims to be entitled, or to protect property in which it claims an actual or contingent interest. The plaintiffs in this case are asking the Court to make an order declaring their interest in certain names contrary to the interest so declared. In my opinion, such proceedings are plainly distinguishable from proceedings against trustees for the administration of a charitable trust, and it is not necessary that the Attorney-General should be a party as either a plaintiff or a defendant. The Court has before it the parties who have an interest in litigating the interests involved. The Attorney-General would also have an interest, because as parens patriae he also is concerned that property the subject of a charitable trust is used for its proper purpose, but this is not a case in which his presence is required. (emphasis added)
Who is the trustee?
22. The plaintiffs’ plead that Ms Hamilton held the monies on trust for South Ozz Shelter. However, in the plaintiffs’ supplementary written closing address, addressing the topic of the plaintiffs’ standing, the plaintiffs submit that they are the only persons who could be the trustees of the charitable trust as they owned and operated the shelter. This is clearly incorrect as neither plaintiff was the legal owner of the funds in Ms Hamilton’s bank account. Ms Hamilton held the legal title to the money in the Progress Saver Account as the plaintiffs concede in their written closing address. The trustee of a trust is the legal owner of the property who holds it on trust for the benefit of a beneficiary or a purpose recognised by law, namely a charitable purpose. In this case, Ms Hamilton was the trustee who was holding the donated funds on trust for the charitable purpose of maintaining the animal shelter.
23. The plaintiffs are not the trustees of the trust and therefore have no standing to enforce the trust.
24. Section 60 of the Trustee Act 1936 makes provision for certain persons other than [sic] Attorney-General to make an application to the Supreme Court to seek relief for an alleged breach of charitable trust.[24] However, that provision requires that the application be made to the Supreme Court, and the jurisdiction to hear such applications has not been conferred on this Court.
[20] (2012) 244 CLR 655 (Bargwanna).
[21] [2004] 3 NZLR 157 (Latimer).
[22] Bargwanna (2012) 244 CLR 655 at 661 [8], quoting Latimer [2004] 3 NZLR 157 at 168.
[23] [1978] 1 NSWLR 575.
[24] Trustee Act 1936 s 60(2). These persons include any person who satisfies the Court that he or she has a proper interest in the trust, see s 60(2)(g).
The contentions of the appellants concerning the Trustee Act 1936 Section 60

Although failing to refer expressly to the TA in their written submissions, the appellants did assert that one of the two issues arising for determination is “whether the Magistrate erred in finding that the appellants did not have standing (Second Ground of Appeal)” and submitted:
20. The concept of charitable trust is one of the exceptions to the ordinary principle of trust law that there must be a beneficiary capable of enforcing the trust.[25] Because there may not be any individual beneficiaries but instead the funds are held on trust for a purpose, the Attorney-General is given power to enforce the trust as parens patriae.[26] The Attorney-General is not, however, a necessary party in proceedings by a charity to recover property (or its proceeds) to which it claims to be entitled.[27]
[25] Dal Pont, Law of Charity (2^nd Ed, 2017) at [6.4].
[26] Dal Pont, Law of Charity (2^nd Ed, 2017) at [14.23]; s 60 of the Trustee Act 1936 (SA).
[27] Metropolitan Petar v Mitreski [2001] NSWSC 976 at [5] (Hamilton J); Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 at [537]-[540] (Hammerschlag J).
In oral submissions, counsel for the appellants submitted to the effect that while the appellants have standing to bring an application pursuant to TA s 60, they also have the option of bringing this action in the Magistrates Court pursuant, it is said, to s 8 of the Magistrates Court Act 1991 (SA) (the MCA).
In addressing the opposing positions of the Magistrate and the respondent, on the one hand, and the appellant on the other, it is necessary to consider at a little depth the correct construction of the TA, to which I now turn.
The correct construction and application of s 60 of the Trustee Act 1936
A critical question before the Magistrate at trial, and now this Court on appeal, is whether all claims involving a breach, or supposed breach,[28] of a charitable trust must be made via TA s 60 to the Supreme Court; or whether there is an available alternative of initiating proceedings in the Magistrates Court if they apparently satisfy the requirements of MCA s 8(1).
[28] In the sense of an alleged or apparent breach.
It is contended by the appellants, on the basis of the wording of s 60 standing alone, that the words “it shall be lawful for a person referred to in subsection (2) to apply to the Supreme Court” give an option to a plaintiff as to jurisdiction and are to be contrasted with words such as “must apply” to the Supreme Court which would, if they were used, make plain that the Supreme Court has exclusive jurisdiction.
However, the rejoinder of the respondent is that the use of words such as “must” would itself make for lack of clarity because it is not the case that a person referred to in TA s 60(2) is required to apply to a court in relation to any and every breach; only that he may do so.
It is therefore necessary to consider the history and correct construction of the TA in a little more depth in the reasons that follow. However, I foreshadow at this stage that I consider that the correct construction of s 60 is that a person referred to in s 60(2) is not required to take Court proceedings in relation to every case of a breach, or supposed breach, of a trust created for charitable purposes but such a person may do so; and if he or she wishes to do so, the lawful course[29] is to apply to the Supreme Court, stating such breach or supposed breach, or the grounds upon which such direction or order is necessary, as the case may be, and seeking such relief as the nature of the case may require.
[29] Or “the only lawful course”.
The surrounding context and composition of the Trustee Act 1936
Section 60 of the TA appears in the following context:
South Australia
Trustee Act
An Act relating to trustees, and for other purposes.
-----------------------------------------------------------------------------------------------------------
…
Part 4 -- Charitable trusts procedure
60—Applications to Supreme court
(1) In every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of the Supreme court shall be deemed necessary for the administration or management or to the advantage or benefit of any trust created for charitable purposes, it shall be lawful for a person referred to in subsection (2) to apply to the Supreme court, stating such breach or supposed breach, or the grounds upon which such direction or order is necessary, as the case may be, and seeking such relief as the nature of the case may require.
Section 19 of the Acts Interpretation Act 1915
Section 19 of the Acts Interpretation Act 1915 provides as follows:
19—Material that forms or does not form part of Act
(1)     The following form part of an Act, subject to any express provision to the contrary:
(a)     preambles, schedules, dictionaries and appendices (including their headings);
(b)     chapter headings, part headings, division headings and subdivision headings;
Accordingly, both the TA preamble (An Act relating to trustees, and for other purposes) and the relevant part heading (Part 4 -- Charitable trusts procedure) form part of the Act. In my view, that is not unimportant.
The preamble indicates that the Act is to be characterised as relating to the topic of “trustees”. The body of the Act (including the sections themselves and the chapter headings, part headings and division headings) indicate that the purpose of the legislation is to delineate and regulate comprehensively the powers and duties of trustees; and to confer (or confirm) powers or jurisdiction of the Supreme Court in relation to trustees.[30] And the Part heading “Part 4 -- Charitable trusts procedure” indicates that s 60 and the following sections in Part 4 are intended to lay down a comprehensive procedure for the administration of charitable trusts in South Australia and which is to be carried out by the Supreme Court.[31]
[30] An example of a new power conferred on the Supreme Court is s 56 which provides as follows:
[31] The drafting of the Trustee Act is rather haphazard in that sometimes the words “Supreme Court” are used and other times the word “Court” is used, but the only construction open when the Act is read as a whole is that the word “Court” always means the Supreme Court. The difference is largely explained as a desire for brevity when one notes the following recurring patterns throughout the Act.
The substantive provisions of the Trustee Act 1936
Mr G E Dal Pont[32] recounts that in South Australia, the predecessor of the TA was the Charitable Trusts Procedure Act 1922 (SA) which was enacted in order to provide “a convenient and speedy method” for the Supreme Court to exercise its jurisdiction over the management of charitable trusts.
[32] G E Dal Pont Law of Charity (LexisNexis Butterworths, 2nd ed, 2017) at [5.1] and following.
TA ss 64 to 67 inclusive, when read together, make clear that Parliament intended to confer upon the Supreme Court an exclusive jurisdiction over charitable trusts. I return to ss 64 and 65 below. As to the depth of such inquiries, TA s 67 provides broad powers for the Supreme Court to make a wide range of orders, including that relief be determined in a separate action. As to the breadth of eligibility of the persons to take part in such a process, TA s 60(2) defines widely the parties who may bring applications thus:
An application may be made by any of the following persons:
(a) the Attorney-General; or
(b) a trustee of the trust; or
(c) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or
(d) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or
(e) a person who has in the past received money or other property from the trustees for the purposes of the trust; or
(f) a person of a class that the trust is intended to benefit; or
(g) any other person who satisfies the court that he or she has a proper interest in the trust.
TA s 66 further demonstrates the breadth of eligibility of the persons to take part in such a process, providing that any person interested who has not been served with the application may address the Court on the application (with s 64 also empowering the court to direct that an applicant serve a copy of the application “upon such other persons as the court may direct”).
The Magistrate found that, although the matter could not be heard in the Magistrates Court, TA s 60(2)(g) is wide enough to permit the appellants to apply to the Supreme Court. I agree.
Reference to court decisions from other jurisdictions
Before referring to some court decisions concerning the New South Wales and Victorian legislation, it must be stressed that this case is to be decided by reference to the South Australian legislation rather than the terms of different legislation under consideration in a particular reported case. Thus, the question for this Court is not whether the Attorney-General should be “joined in proceedings” (as may be the test in NSW or Victoria or elsewhere), but rather whether the provisions of the TA require that the present proceedings be brought in the Supreme Court pursuant to TA s 60 rather than in the form of an action in the Magistrates Court.
Of course, it must be remembered that TA s 60 is limited to cases involving a breach or supposed breach of a charitable trust. Although obvious, it is best to emphasise that this will not include many actions that merely “involve” a charitable trust in some way. To take a random example, say an incorporated charitable trust runs a sausage sizzle (to raise money for its charitable purposes) but supplies bad sausages and a patron is thereby injured. Such a patron could bring an action pursuant to MCA s 8(1) since the TA would not apply. It would not apply because “a breach or supposed breach of a charitable trust” would not include a breach of the trust’s obligation to a third party such as the unfortunate consumer of the defective sausage in the postulated example.
It is unnecessary to define exhaustively all of the situations to which TA s 60 will apply, but it will of course apply to situations (such as the present) involving allegations that persons who are or may be in the position of charitable trustees have misappropriated or failed to account for funds that are impressed with a charitable purpose.
However, having said all of that, reference to interstate judicial decisions concerning interstate legislation is nevertheless very valuable because there is a good deal of commonality of foundational policy as between the various sets of legislation concerning charitable trusts both in general and as to the supervisory role of the Attorney-General in particular. To be blunt, there always has been, and always will be, a certain small percentage of persons (in any society) who will attempt to garner charitable donations from innocent and well-meaning, but sometimes naïve, citizens with the intent of applying only a percentage (varying down to zero) of the donations they receive to the charitable purposes they purport to expound. For very many years in the English/Australian common law system, the Attorney-General has been the central legal figure recognised as responsible for the protection of the poor and disadvantaged subjects of various charities, both generally and from the depredations of fraudsters and charlatans who falsely solicit charitable donations with the intention of benefitting only themselves.
The fact that there has been this constant role for the office of the

Attorney-General has had many advantages. The continuity of the role has meant that although individual disadvantaged persons may not know (and abused or deserted animals cannot know) of it, the vast number of honest people associated with reputable charities will know of the continuing role of the office of the Attorney-General which office may be approached for information and assistance in appropriate cases.
Unfortunately, fraudulent activities masquerading as “charities” continue to be a serious problem and in fact continue to increase in line with the ever-expanding ambit of cheap, instantaneous electronic canvassing via “social media” and the internet generally.
Sections 64 and 65 of the TA demonstrate the importance of maintaining, at the highest levels of government, close supervision of charitable trusts by requiring that all applications be served upon the Attorney-General and giving the Attorney-General the right to appear and address the Supreme Court at any hearing. This is in accordance with the traditional role of the Attorney-General which is explained by Jacobs thus:[33]
It is the duty of the Crown, as parens patriae, to protect property devoted to charitable purposes, and that duty is executed by the Attorney-General as the officer who represents the Crown for all forensic purposes. The Attorney-General represents the beneficial interest, in other words the object of the charity. As such, the Attorney-General may obtain any injunctive or remedial relief to prevent any breach of trust by the trustees of a charitable trust. [Citations omitted]
[33] Jacobs [10-67].
In similar vein, in Sengthong v Lao Buddhist Society of NSW Inc Lindsay J observed:[34]
201. … There is a factual foundation for a finding that at least some of the first defendant’s assets are impressed with a charitable trust. As the State’s protector of charities, the Attorney has a continuing interest, and duty, to maintain an oversight of the proceedings even though, wisely, she has left the adversarial contest to the plaintiff and the second defendant, maintaining for herself a “watching brief”. She should be kept apprised of developments in the proceedings, and the Court’s reservation of liberty to apply should extend to her no less than to other parties to the proceedings and the Receiver.
[34] [2016] NSWSC 1408.
Some decisions concerning the New South Wales and Victorian legislation
In the decision of the High Court in FederalCommissioner of Taxation v Bargwanna (on appeal from the Federal Court of Australia) the plurality considered some “matters of general law concerning in particular the administration of charitable trusts” and stated: [35]
[7] First, it may be observed that in many respects the administration of a charitable trust does not differ from that of a private trust. A critical distinction is that a trust for charitable purposes lacks the individual beneficiaries who commonly hold the beneficial interest in the trust assets.
[8] When delivering the reasons of the Privy Council in Latimer v Commissioner of Inland Revenue[36] Lord Millett stated the following “general principles” respecting charitable trusts:
“It is of the essence of a charitable trust that it is a trust for the promotion or advancement of social purposes rather than a trust for individual beneficiaries. Of course, individuals may benefit from the application of trust moneys, but they are not, as individuals, the beneficiaries of the trust and may not enforce its terms. If the purposes of the trust are charitable, they may be enforced by the Attorney-General; if they are not charitable then, with certain anomalous exceptions, they are not enforceable and the trust is not valid. Whether the purposes of the trust are charitable does not depend on the subjective intentions or motives of the settlor, but on the legal effect of the language he has used. The question is not, [w]hat was the settlor’s purpose in establishing the trust? [B]ut, [w]hat are the purposes for which trust money may be applied?”
[9] The reference to enforcement by the Attorney‑General requires some qualification with reference to the statute law of New South Wales. Proceedings with respect to an alleged breach of charitable trust or its administration may be brought by the Attorney‑General, with or without a relator, or by another authorised person, as provided by s 6 of the Charitable Trusts Act 1993 (NSW).
[35] (2012) 244 CLR 655, 660-661 (French CJ, Gummow, Hayne and Crennan JJ).
[36] [2004] 3 NZLR 157 at 168 [24]; [2004] 1 WLR 1466 at 1475; [2004] 4 All ER 558 at 567.
The New South Wales legislation referred to in Bargwanna requires that certain charitable trust proceedings must be authorised by the Attorney-General. However, this does not extend to every case that happens to, in some way, involve a charitable trust.[37]
[37] Anglican Development Fund Diocese of Bathurst v Palmer (2015) 336 ALR 372, [536]-[541] was one such case. There Hammerschlag J stated: “[537]. … These are not charitable trust proceedings as defined. BIC and ADF sue to enforce private civil rights in contract, under a statute or both. Neither sues as beneficiary of or in relation to the administration of a trust. The intrusion of charitable trusts is in every real sense incidental. They only arise in the context of whether assets are available to meet the asserted obligation”.
In the judgment of Rath J in Uniting Church in Australia Property Trust (NSW) v Monsen (Monsen) a passage appears, upon different parts of which the respective parties in the present case sought to rely. Rath J there stated:[38]
It seems to me that the Attorney-General is not a necessary party in proceedings in which an existing charity, whether incorporated or not, is seeking to recover property to which it claims to be entitled, or to protect property in which it claims an actual or contingent interest. The plaintiffs in this case are asking the Court to make an order declaring their interest in certain names contrary to the interest so declared. In my opinion, such proceedings are plainly distinguishable from proceedings against trustees for the administration of a charitable trust, and it is not necessary that the Attorney-General should be a party as either a plaintiff or a defendant. The Court has before it the parties who have an interest in litigating the interests involved. The Attorney-General would also have an interest, because as parens patriae he also is concerned that property the subject of a charitable trust is used for its proper purpose, but this is not a case in which his presence is required. (Emphasis added)
[38] [1978] 1 NSWLR 575, 591.
The appellants in the present case seek to rely on the first of the two italicised portions above. They submit in effect that they are simply seeking to recover property to which they claim to be entitled and therefore the Attorney-General is not a necessary party. The respondent, on the other hand, submits that the proceedings here are proceedings against a trustee for the administration of a charitable trust, the very situation referred to in the second of the two italicised portions and from which Rath J distinguished the proceedings before him.
The judgment in Monsen is often correctly cited (as occurred here in the Magistrate’s judgment) for the second italicised passage referring to those proceedings against trustees for the administration of a charitable trust which will require the input of the Attorney-General.
What is apparent in relation to the NSW legislation is that in determining whether the Attorney-General is, or is not, a necessary party to particular litigation, it is well recognised that if the administration, management or conduct of a charitable trust is in issue, the Attorney-General will be a necessary party. Thus, in Metropolitan Petar v Mitreski,[39] Hamilton J referred to the judgment in Monsen and went on to stand the matter over until such time as the Attorney-General was made a party because the defendant had foreshadowed a challenge as to whether the property was held under a charitable trust.
[39] [2001] NSWSC 976.
The position is very similar in Victoria. In the decision of the Supreme Court of Victoria in Num-Hoi, Pon-Yu, Soon-Duc Society Inc v Num Pon Soon Inc (Num-Hoi), it was held by Harper J that the case was one “against trustees for the administration of a charitable trust” and by its very nature necessitated the involvement of the Attorney-General. His Honour stated: [40]
28. In any event, the issue with which I am presently confronted cannot be side-stepped on the basis that the case can proceed before the issue is resolved. Here, it is not the claim so much as the identity of the claimant that is in issue. My role therefore requires a straightforward application to the alleged facts of the law relating to the initiation of proceedings in which a charitable trust is involved. If the result of this exercise is to the effect that the Attorney-General is the proper plaintiff, then I should so hold. I must decide the matter one way or the other. Degrees of satisfaction do not enter into it. As Rath J himself acknowledged in Uniting Church Property Trust v Monsen (at 589) there are classes of proceedings “where the Attorney-General must sue as parens patriae”. The defendants submit that this is one of them. In these circumstances, I cannot allow the case to go forward on the basis that the defendants might or might not be right, but that (the question being “in some respects at least, relating to substantive issues of law, in themselves arguable”) the litigation may proceed in the meantime without the Attorney-General although it may subsequently turn out that he is a necessary party. If he is indeed a necessary party then he should assume that responsibility before the case goes any further.
29. It is as a general proposition true that “[t]he Attorney-General is the only person who can really represent a charity and sue on its behalf”: Strickland v Weldon. More particularly, it may be said that it is the Attorney-General who represents the beneficial interests, or in other words the objects, of the charity. Where these are the subject matter of the dispute, then it is both the duty of the Attorney-General to become involved and the duty of the Court to take such steps as will enable him or her to do so.
…
32. … Here, both parties assert that the Little Bourke Street property and associated assets are subject to a trust the identity of which is not in dispute. What is in dispute is the identity of the trustee. One of the litigants (the plaintiff) also puts forward an alternative: that the property belongs to the Crown. That litigant further asserts that, by acting in breach of trust, the first defendant has forfeited its right to remain as trustee. In my opinion, therefore, this case is one “against trustees for the administration of a charitable trust”. …
…
37. In my opinion, too, principle indicates that, if this proceeding is to be continued, it should be continued by the Attorney-General. It does concern (to repeat the words, quoted above, of the Master of the Rolls in Ware v Cumberlege) “the conduct or management of the charity”. This is necessarily a matter of public rather than private concern. So too is the question whether the relevant property should pass to the State. Likewise, so is the claim that a trustee of a charitable trust should be removed for breach of trust. And “[i]t is settled in our constitutional law that in matters which concern the public at large the Attorney-General is the guardian of the public interest”: Attorney-General v. Independent Broadcasting Authority. It is accordingly proper that, in cases such as this, the Attorney-General as the representative of the public decide whether the public interest is or is not served by the continuation of the litigation which the plaintiff has already begun.
…
39. For these reasons, the entire proceeding should be stayed for such time as is reasonable for the Attorney-General to consider his position and (if he thinks it appropriate) to seek to substitute his name as plaintiff. … [Citations omitted]
[40] (2001) 4 VR 527.

And in the later decision of the Supreme Court of Victoria in Tomasevic v Jovetic the same result was reached. There, the dispute concerned the identity of a trustee of trust property used by worshippers of the Serbian Orthodox Church. The dispute was directed to the conduct, management and administration of a charitable trust and the defendant sought orders for the plaintiff to account for monies held in church bank accounts and for the return of church property. Pagone J observed: [41]
6. … The necessity for the Attorney-General to be a party depends upon the nature of the dispute. The learned authors of Principles of the Law of Trusts give as one instance when the Attorney-General is required as a party “where there is a dispute between trustees”.[42] The necessity for the Attorney-General to be a party derives from the role of the Attorney-General as the guardian of charities. The Attorney-General also represents the Crown and is the legal protector of all persons interested in charity funds.[43] As representative of those holding a beneficial interest the role of the Attorney-General to a proceeding also binds all beneficiaries to the outcome of the proceeding.[44] [Emphasis added]
[41] [2011] VSC 131.
[42] HAJ Ford and WA Lee, Principles of the Law of Trusts, 20-106 [20.170].
[43] Re Sekeford’s Charity (1861) 5 LT 488; H Picarda, The Law and Practice Relating to Charities (4^th ed, 2010) 924; Brooks v Richardson [1986] 1 WLR 385, 390-1 (Warner J); J Warburton (ed), Tudor on Charities (9^th ed, 2003) 381; G Dal Pont, Charity Law in Australia and New Zealand (1999) 266.
[44] Vince v Walsh (1845) 3 WR 7; H Picarda, The Law and Practice Relating to Charities (4^th ed, 2010) 924-5.
Pagone J followed the earlier decision of Num-Hoi and held that the Attorney-General was a necessary party and the matter should be stayed. His Honour again emphasised the obvious difference between the case before him and that of Monsen thus:[45]
The plaintiffs in this case are asking the Court to make an order declaring their interest in certain names, and an order restraining the defendants from dealing with those names contrary to the interest so declared. In my opinion, such proceedings are plainly distinguishable from proceedings against trustees for the administration of a charitable trust, and it is not necessary that the Attorney-General should be a party, either as plaintiff or defendant. The Court has before it the parties who have an interest in litigating the issues involved. The Attorney-General would also have an interest, because as parens patriae he also is concerned that property the subject of a charitable trust is used for its proper purposes, but this is not a case in which his presence is required. [Citation omitted]
[45] [2011] VSC 131 at [10] citing Monsen; this is the same passage the Magistrate relied upon in the trial court.
I pause to note that in the proceedings before this Court, the appellants themselves contend that the present case does involve, on the appellants’ case, “a dispute between trustees”.[46] Thus, appellants’ counsel submitted repeatedly that if Hamilton held the funds in her bank account as a charitable trustee she must pay over those funds to one or other of the appellants who is also a charitable trustee for the shelter activities.
[46] As referred to by Pagone J in the emphasised passage in Num-Hoi immediately above.
Reconciling the Trustee Act 1936 with the Magistrates Court Act 1991 s 8(1)
MCA s 8(1) provides as follows:
Civil jurisdiction
8. (1) The Court has jurisdiction-
(a)to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100,000;
(b)to hear and determine an action (at law or in equity) to obtain or recover title to, or possession of, real or personal property where the value of the property does not exceed $100,000;
(c)to hear and determine an interpleader action where the value of the property to which the action relates does not exceed $100,000.
(d)to grant any form of relief necessary to resolve a minor civil action.
(2) The parties to an action may waive any monetary limit on the civil jurisdiction of the Court, and, in that event, the Court will have jurisdiction to determine the action without regard to that limitation.
The appellants place great emphasis on this provision and in effect submit that, provided they style their claim as “an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100,000”, they may proceed in an action in the Magistrates Court irrespective of the existence of the TA.
In my view (as was the view of the Magistrate) that is quite incorrect. The TA is a law specifically governing the topic of trusts in South Australia. Part 4 of that Act is entitled “Charitable Trusts Procedure” and specifically governs the way in which a breach or supposed breach of a charitable trust is to be addressed in the South Australian Court system.
The TA specifically enacts[47] a panoply of powers that can be brought to bear by the Supreme Court in the course of investigating or dealing with such a breach or supposed breach. The TA also provides for mandatory service of proceedings on the Attorney-General (s 64) as well as granting the Attorney-General the right to address the Supreme Court, either personally or by counsel, at the hearing (s 65).
[47] It may be that the Supreme Court would in any case possess some of these powers but I do not pursue the point; the answer would in no way affect the present argument because the Magistrates Court clearly does not.
On the other hand, the MCA addresses none of these matters, and the reason is obvious. The MCA deals in a general way with the jurisdiction of Magistrate Courts but in no way asserts jurisdiction inconsistent with that conferred specifically upon the Supreme Court by the TA. Such jurisdiction in the Supreme Court is clearly exclusive.
Generalia specialibus non derogant
However, I do not think that it is really necessary to rely on the maxim generalia specialibus non derogant here because the two Acts can easily be read together. I consider that the position is as stated by Pearce and Geddes thus: [48]
It must never be overlooked that, before the generalia specialibus approach can be called into operation, it is necessary to show that there is an irreconcilable conflict between the relevant provisions. The court will have to be convinced that the two provisions cannot stand together: Fonteio v Morando Bros Pty Ltd [1971] VR 658; Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681; (1974) 4 ALR 353; Ombudsman v Laughton (2005) 64 NSWLR 114.
In reaching a conclusion whether provisions can be reconciled, the court will not look to hypothetical or possible conflicts. The issue will be determined having regard to ‘the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises’: per Kirby P in Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 294. However, if the provisions cannot be reconciled, the generalia specialibus rule will be applied and the general provision must give way to the particular: Solicitor for the Northern Territory v Moketarinja (1996) 111 NTR 4 at 7.
[48] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 336 [7.20].
As a close analogy, I make particular reference to the approach of the NSW Full Court in Sarris and Guise v Penfolds Wines Pty Ltd[49] to the maxim leges posteriores priores contrarias abrogant. In that case, Penfolds Wines Pty Ltd, as owner, served upon Sarris and Guise, as tenants, a notice to quit under the Gaming and Betting Act 1912-1959 s 19 and on its expiry commenced proceedings in ejectment. The defendants took proceedings to strike out the writ in ejectment, arguing that s 19 of the Gaming and Betting Act 1912-1959 was repealed by the Landlord and Tenant (Amendment) Act 1948-1958. Sugerman J (with whom Collins and Jacobs JJ concurred) stated:[50]
The relevant general principles are clear. As it is put in Craies on Statute Law, in the 5^thed, at p 337: “Where two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier”. The learned text-writer then goes on to say that the Court leans against implying a repeal and he quotes from Kutner v Phillips [1891] 2 QB 267: “Unless two Acts are so completely repugnant to each other that effect cannot be given to both at the same time a repeal will not be implied”.
…
The ultimate question is really one of necessary implication of intention. In the first instance we must ascertain whether, having regard to the provisions of the Landlord and Tenant Act, there is such repugnancy that we can imply an intention on the part of the Legislature to repeal the earlier provisions of s 19 of the Gaming and Betting Act. Such a question is not to be resolved by a merely literal and grammatical comparison of particular provisions of the two enactments which are in question. It is necessary to look also at the nature of the legislation, its policy or principle, and its purpose or object, as these are to be ascertained from the terms of the legislation itself – see Garnett v Bradley (1878) 3 App Cas 944; Butler v Attorney-General for Victoria [1961] ALR 650.
…
The two enactments deal with different subjects, are based upon different principles, and have different objects. The Landlord and Tenant (Amendment) Act imposes restrictions upon the common law rights of lessors to terminate tenancies in accordance with their terms and to recover possession of premises after the termination of tenancies. These are imposed in the interests of tenants and occupiers for the avoidance of hardship and on other grounds. They are correlative to a scheme of rent control embodied in other parts of the same Act and are designed to mitigate the consequences of a shortage of residential and other accommodation. Section 19 of the Gaming and Betting Act, on the other hand, is a conferment of a new right upon landlords in augmentation of their common law rights. It is part of a scheme of provisions for the suppression of betting and gaming houses. Its more particular purpose, as part of that scheme, is to enable the owner of premises, which he suspects are being used for the purpose of illegal betting, to avoid the consequences which would follow from a declaration of the premises as a common gaming house should that occur. The serious character of these consequences as they may affect the owner and his interest in the premises is apparent from a consideration of various provisions of the Gaming and Betting Act, of which I need only refer to ss 25, 26 and 28. The section also operates directly as a mode of suppressing gaming houses by enabling those who carry them on to be deprived of the premises so employed.
The present case is not, in my opinion, an application of the principle which is embodied in the Latin maxim leges posteriores priores contrarias abrogant. There is no repugnancy between the two enactments with which this case is concerned. These can readily stand and operate together. The case is not one in which an intention to repeal the provisions of s 19 of the Gaming and Betting Act can be imputed to the Legislature when it passed the Landlord and Tenant (Amendment) Act of 1948.
[49] [1962] NSWR 801.
[50] Ibid 802-803, 805.
The breadth of an inquiry under Trustee Act 1936
While a remedy may be open to the appellants under s 60 TA, it is to be noted that the Supreme Court on such a hearing would not be restricted to supposed breaches committed by Hamilton alone. The point is made by counsel for Hamilton that the version of facts asserted by Hamilton and the witnesses called by her differ from that of McLachlan and her witnesses in a number of important respects; and that a consideration of the whole of the evidence may indicate “supposed breaches” by McLachlan in her dealings with monies she received on trust for the activities at the shelter.[51] Counsel further pointed to various deficiencies in the case for McLachlan and emphasised aspects of the evidence given by Hamilton (some of which was corroborated by other evidence in the case). Some examples are as follows.
[51] The obligations imposed on a charitable trustee are strict. Thus in the High Court decision in Federal Commissioner of Taxation v Bargwanna (2012) 244 CLR 655 the plurality stated:
10. In considering the issues of revenue law on this appeal, it is particularly important to note that general principles of trust law obliged the respondents as trustees strictly to conform to and carry out the terms of the Deed. In the exercise of their powers of administration, the trustees were obliged to act with the care which an ordinary prudent man of business would take. The respondents also were under a duty to keep the property comprising the Trust Fund distinct from their own property and from property which was held on other trusts; by mingling trust funds with other property they become more difficult to trace and identify and are subjected to risks of loss to which they otherwise would not be subjected. Power to mix trust property with other property may be given by statute (exemplified by legislation permitting solicitors in specified circumstances to mix trust money with other money) or by the terms of the trust. No such power applied here. In particular, the terms of the Deed, although widely drawn, did not authorise the admixture of trust funds. [Footnotes deleted]
First, counsel for Hamilton made a number of criticisms of the methodology and reliability of the Simpson Report.[52]
[52] I will not address these matters but they included that over $7,200 of the total amount said to have been misappropriated was paid into Hamilton's bank account by Hamilton and her partner themselves.
Secondly, he noted that Hamilton gave evidence that a number of the payments made out of her bank account (which are now said to constitute misappropriations) were in fact made on the instructions of McLachlan herself; and that they included payments of third party accounts and also reimbursements to herself of expenses that she had incurred.
Thirdly, he noted that Hamilton gave evidence that she regularly paid amounts in cash (the total being in excess of $30,000) to McLachlan for her to pay shelter expenses in cash. In evidence, McLachlan denied ever receiving cash from Hamilton but the witness Ryder gave evidence that she was present on several occasions when McLachlan did receive cash from Hamilton. McLachlan also initially denied that she paid any shelter expenses in cash[53] but documentary evidence demonstrated that she had indeed made very substantial cash payments and McLachlan eventually accepted in cross-examination that this was so. Counsel for the respondent made other criticisms of McLachlan concerning her credibility and reliability which I will not pursue.
[53] Except for one isolated occasion in an amount of $200 to $300.
While I will not go into these matters any further, the very fact that there are contentions by each side against the other of unsatisfactory conduct in the administration of a charitable trust only serves to confirm that this type of case must be considered by the Supreme Court in an application under the TA rather than in the much more narrow way that a Magistrate must proceed in hearing a trial inter partes under MCA s 8(1) in light of the constraints imposed by the pleadings of the parties.
The equitable jurisdiction of the Magistrates Court
Finally, while unnecessary for the present decision, it is perhaps best to make brief reference to the nature of the “equitable jurisdiction” of the Magistrates Court.
In the decision of the Queensland Court of Appeal in Ron Kingham Real Estate Pty Ltd v Edgar which involved similar (but not identical[54]) legislation, McPherson JA (with whom Davies JA and Fryberg JA concurred) observed[55] that “The magistrates court is not a court of equity; but it is a court which, for limited purposes, is invested with equitable jurisdiction”.
[54] An action “in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than $40,000”.
[55] [1999] 2 Qd R 439, 444.
In Victor Harbor City v Roeger, Perry J considered whether orders for specific performance could be made by a Magistrates Court in the absence of a claim for a sum of money, and concluded in the negative. In arriving at that conclusion, his Honour traced the history of section 8 thus:[56]
46. The Magistrates’ Court of South Australia is established as a court of record by the Magistrates Court Act (SA) 1991 (see ss 4 and s 5) (hereafter described as the Act). The Act defines the jurisdiction of the court. The jurisdiction is exercised by four divisions, namely, the Civil (General Claims) Division, the Civil (Consumer and Business) Division, the Civil (Minor Claims) Division and the Criminal Division (see s 7(1)).
…
57. The civil jurisdiction of Magistrates’ Courts as provided in the Act was previously exercised by Local Courts.
58. Historically, it has been accepted that except where a specific and express conferral of equitable jurisdiction has been made on Local Courts, they were unable to exercise jurisdiction in equity as opposed to at common law.
[56] (2002) 82 SASR 140.
His Honour then traced the history of South Australian Local Courts and continued:
64. Insofar as the 1926 Act and its predecessors referred to “personal actions”, the word “action” is a word which invariably referred to a proceeding in one of the common law courts as opposed to a suit in equity.
65. Section 8(1) of the Act, which superseded the earlier Acts to which I have referred, confers jurisdiction on the court to hear and determine: “... an action (at law or in equity) for a sum of money where the amount claimed does not exceed ... etc”.
66. The expression “action in equity”, while strictly inappropriate to describe proceedings in equity, is qualified by the words which follow, namely “for a sum of money”.
67. In those circumstances, it does not seem to me that the equitable jurisdiction which is conferred would extend to a claim for equitable relief disassociated from a money claim.
68. Insofar as account must be taken of the provisions of s 31, it seems to me that that section is in its terms limited to dealing with forms of relief which may be granted in an action, rather than defining the basic jurisdiction which may be exercised by the court.
69. While it is true that in this case the claim filed by the respondents is for a money amount, when the respondents claimed specific performance of the contract or agreement alleged to have been entered into with the appellant, it does not seem to me that such a claim can properly be construed as a claim “for a sum of money” within the meaning of s 8(1)(a). The “form of relief” referred to in s 31(1) can only be a form of relief which is within the rubric of the parameters of the jurisdiction of the court defined by s 8.
In Conroy’s Port Pirie Abattoirs v Channel Seven Adelaide (No 3) the appellants brought an action for interim and interlocutory injunctions against further publication and damages for defamation in the District Court. The plaintiff was awarded damages. The defendant submitted that costs should be reduced because the action could have been brought in the Magistrates Court. Lunn DCJ stated:[57]
5. … The claim in this action for a permanent injunction against the broadcast of the proposed story was a claim for equitable relief. The reference in s8(1)(a)(i) of the Act to “in equity” is confined to an action in equity for a sum of money such as an indemnity: Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Q d R 439 at 444-5. In City of Victor Harbor v Roeger (2002) 82 SASR 140 it was held that s8 did not confer equitable jurisdiction on the Magistrates Court for a claim of specific performance. By parity of reasoning it does not confer jurisdiction for a claim in Equity for a final injunction. Sections 25 and 26 of that Act merely confer powers for granting interlocutory injunctions as incidental relief but not final injunctions. Here the claim for the injunction was not merely incidental to the claim for damages, but was a substantial head of claim in its own right. It was not a baseless claim to take the action out of the jurisdiction of the Magistrates Court. Likewise ss30 and 31 of that Act do not confer any additional jurisdiction on the Magistrates Court over and above that conferred by s8: City of Victor Harbor v Roeger (above).
[57] [2005] SADC 110. Similarly, in Carneiro & Anor v Robinson & Ors(No 2) [2005] SADC 151,

This decision was upheld in the appeal to the Full Court. Perry J (with whom Nyland and Sulan JJ concurred) there stated:[58]
265. The trial judge held that s 42(2) was not of application, as the action was not one which “might have been brought in the Magistrates Court” within the meaning of s 42(2)(b). The action could not have been brought in the Magistrates Court because it was an action in which the plaintiff claimed a permanent injunction against the broadcast of the proposed story. Indeed, when one looks at the statement of claim, that is the first claim made in the prayer for relief.
266. The Magistrates Court did not have jurisdiction to grant equitable relief in the nature of a permanent injunction. While it has a limited equitable jurisdiction, this is mainly confined to orders which are ancillary to the principal relief claimed, which ordinarily is a money claim.
267. The trial judge referred to Victor Harbor City v Roeger, in which this Court held that the Magistrates Court did not have equitable jurisdiction to entertain a claim for specific performance. The trial judge correctly held that by a parity of reasoning there is no jurisdiction in the Magistrates Court to entertain a claim in equity for a final injunction.
268. I reject the arguments advanced by the defendant against that construction of the relevant provisions of the Magistrates Court Act 1991 (SA). [Citation omitted]
[58] Conroy’s Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd (2007) 97 SASR 14, 55-56.
Conclusion
The analysis in the above decisions concerning MCA s 8(1) is congruent with the conclusions to which I have come. They may be briefly summarised thus.[59]
[59] But they are to be read in the light of the more detailed analysis above.
First, MCA s 8(1) is to be characterised as conferring equitable jurisdiction on the Magistrates Court by reference to a very general subject matter, namely actions (at law or in equity) for a sum of money where the amount claimed does not exceed $100,000; such jurisdiction is vast in that the varieties of such possible actions is infinitely large.
Secondly, Part 4 of the TA is to be characterised as addressing the very specific subject matter of charitable trusts; this is a subject with which both the Courts of Equity and the office of the Attorney-General have traditionally had a very close connexion. The intendment and purpose of the TA is that the powers, functions and responsibilities concerning charitable trusts (including the matters referred to in s 60) are specifically entrusted to the highest Court in South Australia, the Supreme Court.
Thirdly, the Magistrates Court, while having some equitable jurisdiction, is not a “Court of equity” in the same sense as the Supreme Court is to be so described. MCA s 8(1) only confers an equitable jurisdiction on the Magistrates Court by reference to the general jurisdiction delineated by s 8(1) and this is not inconsistent with the exclusive jurisdiction concerning charitable trusts being conferred on the Supreme Court by the TA. MCA s 8(1) and Part 4 of the TA may easily be read together. TA s 60 expressly states that an application concerning a breach or supposed breach of any trust created for charitable purposes is to be dealt with by the Supreme Court and accordingly no such application may be made to a Magistrates Court in the guise of an action under MCA s 8(1).
Fourthly, since the provisions may be read together, reference to maxims such as generalia specialibus non derogant and leges posteriores contrarias abrogant is not needed. However, reference to the case law concerning such maxims is confirmatory of the above propositions.
Finally, the Magistrate was correct in holding that she had no jurisdiction to determine the matter.
Disposition
The appeal is dismissed.

56—Jurisdiction of Supreme Court in cases of breach of trust
If it appears to the Supreme Court—
(a) that a trustee is, or may be, personally liable for any breach of trust (whether the transaction alleged to be a breach of trust occurred before or after the passing of this Act); but
(b) that the trustee has acted honestly and reasonably and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the said court in the matter in which he has committed such breach, then the said court may relieve the trustee, either wholly or partly, from personal liability for the breach of trust.

First, the pattern of use of the words “Supreme Court” followed by the word “Court” within the very same section or sub-section, is such that the Supreme Court is obviously meant on each occasion. Examples include: ss 25A(3); 25B(1); 25B(1a); 25B(2); 25B(3); 29(5); 37(1)(a); 41(1)(a); 44; 45; 46(1); 48(3); 49(1); 49(2); 58; 69B(4); 84C; 84E(2) and 84F.
Secondly, the pattern of use of the words “Supreme Court” in a section or sub-section immediately followed by the word “Court” in the next section or sub-section, is again such that the Supreme Court is obviously meant on each occasion. Examples include: ss 36(1) and 36(1a) and 36(1b) and 36(e); 37(1) and 37(2); 41(1) and 41(1a); 41(2) and 41(3); 50(1) and 50(2); 56; 57; 59C; 60; 84C and 84D; 90(1) and 90(2).
Thirdly, the pattern of the words “Supreme Court” being used in a section or sub-section followed later by a corresponding section or sub-section in which the word “Court” is used, again is such that the Supreme Court is obviously meant on each occasion. Examples include: s 39 (Court) corresponding to the foregoing s 37(1) “Supreme Court” and s 41.
Fourthly, the pattern of the word “Court” being used in a section heading followed by the words “Supreme Court” being used within the body of the section, again is such that the Supreme Court is obviously meant on each occasion. Examples include: ss 47; 59C; 90 and 91.

[17]-[18]. Robertson DCJ stated: “The Plaintiffs’ claim relying upon promissory estoppel arising from the promises said to have been made in December 1999 and January 2000 sought relief by way of a permanent injunction. A claim for permanent injunctive relief relying upon the doctrine of promissory estoppel is a claim in Equity. In my opinion, the Magistrates Court does not have jurisdiction to hear and determine such a claim. The Magistrates Court is not a Court of Equity. If it has equitable jurisdiction, then it must be derived from the MCA. I am of the view that the MCA does not provide jurisdiction to hear and determine a claim of that nature”.