Roman Catholic Archbishop of Sydney v Metropolitan Water Sewerage and Drainage Board

472

HIGH COURT

[1923.

[HIGH COURT OF AUSTRALIA.]

THE ROMAN' CATHOLIC ARCHBISHOP OF )

A p p e l l a n t ;

SYDNEY . . . . .

. 5

D e f e n d a n t ,

THE METROPOLITAN WATER, SEWERAGE, ) "

^

AND DRAINAGE BOARD .

. ) R espondent.

_

P l a in t if f ,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

H. C. OF A. Local Oovernmenlr-^Rates—Exemption— Building used .solely for religious purposes—

Receipt of rents in building^Public charity— Metropolitan Wdter, Sewerage, and Drainage Act 1924 (N.N. H'.) (No. .50 of 1924), sec. 88 (1) (d), {h)~8ainf Sy d n e y , Patrick's College (Manly) Act 1914 (N.S.IV.) (5 Oeo. V.), secs. 2, 3, Schsls.

1928.

Mar. 27, 30;

1 and 2—Stat. 43 Eliz. c. 4.

.ip ril

16.

Sec. 88 (1) of the M etropolitan Water, Sewerage, and Drainage Act 1924

Knox C..T ,

Uaacs. Higgins, (N.S.W.) provides tha t “ No rates shall be levied upon any of the following

Gavan Duffy,

classes of land— . . . ( d ) land which belongs to any public hospital, public

Powers and

Starke .T.).benevolent institution, or public charity, and is used or occupied by the

hospital, institution, or charity as the case may be, solely for the purposes thereof; . . . (h) land which is occupied by and is used directly in connection with a church, Sunday school, or other building which is used or occupied solely for public worship, or for religious teaching.”

Held, th a t a building which is used or occupied for religious teaching is “ solely ” used or occupied for th a t purpose within the meaning of sec. 88 (1) (h) notwithstanding th a t rent for land of the owner, other than the land which is occupied by and is used in connection with the building, is payable and is paid in the building.

Per Isaacs and Powers J J ., Higgins J. doubting: The words “ pubhc charity ” in sec. 88 (1) (d) are not used in their technical sense but in their ordinary popular sense.

Decision of the Supreme Court of New South Wales (Harvey C.J. in Eq.) reversed.

.40 C.L.R.] OF AUSTRALIA.

473

Ap p e a l from the Supreme Court of New South Wales.

H. C. or A.

1928.

A suit was brought in the Supreme Court of New South Wales by the Metropolitan Water, Sewerage, and Drainage Board against

R oman Catholic

the Roman Catholic Archbishop of Sydney seeking a declaration

-Ar c h b ish o p

OF

that the defendant was liable to pay the amount of certain water

Sy d n e y

V.

rates and sewerage rates in respect of certain land a t Manly of which Me t r o ­

the defendant was alleged to be the owner. By his defence the po lita n

W a t e r ,

defendant alleged that the land was occupied by, and used directly

Sew e b a o b ,

A N D

in connection with, a building which was used and occupied solely Dra in a g e

for religious teaching, and (by an amendment made a t the hearing)

B oard .

that the land-was land which belonged to a public charity and was used or occupied by the charity solely for the purpose of the t r u s t ; and contended that the land was therefore exempt from rating under the Metropolitan Water, Sewerage, and Drainage Act 1924 (N.SrW.). I t was admitted a t the hearing {inter alia) th a t the land in question, which was 43 acres in area, was vested in defendant as the Roman Catholic Archbishop of Sydney for the time being by the Saint Patrick's College {Manly) Act 1914 (N.S. W.) and was held by him upon the trusts recited-, and with the powers set out, in tha t A c t; that upon the land was erected a building known as St. Patrick’s College which was used as a seminary for the education of young men students for the Roman Catholic priesthood ; th a t leases granted under the powers given by the Saint Patrick's College {Manly) Act of other parts of the land vested in the defendant by tha t Act, being the land described in the Second Schedule to tha t Act, provided that the rents thereby reserved were to be paid half-yearly at St. Patrick’s College ; tha t such rents were paid, and receipts therefor were issued, a t the College, and such rents were applied for the purposes directed by the A c t; and tha t each year, when a religious ceremony known as Corpus Christi was celebrated, a procession was held upon the land which was thrown open to the general pubhc on such occasions, and large numbers of the general public assembled upon the land to take part in or to witness the

procession. . . t

,

Sec. 2 of the Saint PatiHck's College {Manhj) Act provides that The lands described in the First Schedule to this Act are hereby vested in the Roman Catholic Archbishop of Sydney and his successors

474 HIGH COURT

[1928.

H. C. OP A.

for the time being to be held subject to this Act upon the trusts

1928.

hereinbefore recited.” The recited trusts are : “ Upon trust for

R omanthe erection thereon of an episcopal residence for the Roman Catholic

Catholic

Ah c h b ish o p

Archbishop of Sydney for the time being, and of such buildings (if

OF

Sy d n e y

any) for educational purposes as the Roman Catholic Archbishop of

V.

Me t r o ­

Sydney for the time being should authorize and permit to be erected

po lit a nthereon.” Sec. 3 provides tha t “ The said Archbishop and his

W a t e r ,

Se w e r a g e ,

successors for the time being may—(a) lease all or any portion of

AND

D ra in a g ethe lands described in the Second Schedule hereto ” (being portion

B o a rd .of the lands described in the First Schedule) “ for such term, at such

rent, and subject to such conditions as he or they may think fit, and apply any rents so received towards the upkeep and maintenance of the buildings now erected on the lands described in the First Schedule hereto, and to the payment of rates, taxes, and other outgoings in relation thereto as well as for the purposes declared in the trust hereinbefore recited ; ” &c. The land described in the First Schedule comprised three parcels of 23 acres 3 roods, 50 acres 3 roods 26 perches, and 3 roods 11 perches ; and the Second Schedule described a parcel of 21 acres 1 rood 15 perches, being portion of the land described in the First Schedule. The 43 acres of land in respect of wliich the rates were sought to be recovered was the whole of the land described in the First Schedule, except portion of it which was occupied by the episcopal residence and the land described in the Second Schedule.

The suit ŵ as heard before Harvey C.J. in Eq., who held that the land was not exempted from rating either by clause (d) or clause (k) of sec. 88 (]) of the Metropolitan Water, Sewerage, and Drainage Act 1924 ; he therefore made a decree declaring that the defendant was liable for the amount of the rates in question.

From tha t decision the defendant now, by special leave, appealed to the High Court.

Feez K.C. (with him Power), for the appellant. The land in respect of which the rates are claimed is within the exemption of sec. 88 (1) {h) of the Metropolitan Water, Sewerage, and Drainage Act 1924, for

40 C.L.R.]

OF AUSTRALIA.

St. Patrick’s College, which occupies the land and in connection

H. C. OF A.

1928.

with which the land is used, is used and occupied solely for religious

V—

R o m .4k Catholic

teaching.

The fact tha t lessees of the leased land have to pay their

rent at the College and do in fact pay it there does not render the

-Ar c h b ish o p

OF

use or occupation of the College any the less a use or occupation

Sy d n e y

solely for rehgious teaching. There is no evidence tha t any part

V.

Me tr o ­

of the College is used as an ofi&ce for receiving rents. The land is po lita n

W a t e r ,

also exempted by sec. 88 (1) (d) as being land belonging to a public

Sew er a o k ,

AND

charity. There is no reason why the words “ public charity ” as D rainaok

there used should be given any other than their technical meaning

B oa rd .

{Chesterman v. Federal Commissioner of Taxatio^i (1); Hall v.

Derby Sanitary Authority (2) ).

Maufjhan K.C. (with him Weston), for the respondent. Payment of rent at the College as a practice is a use of the College for a purpose other than religious teaching. As to sec. 88 (1) (d) the words “ pubhc charity ” should in their context be interpreted ejusdem generis with public hospital and public benevolent asylum.

Feez K.C., in reply.

Cur. adv. vidt.

The following written judgments w'ere delivered :—

April 16.

K nox C.J., G ava n D o f i ŷ a n d S t a r k e J J . This is an appeal from a decree of the Chief Judge in Equity declaring that the appellant is liable for the amount of rates levied by the respondent in respect of a parcel of land containing 43 acres or thereabouts which is admittedly occupied by and used directly in connection with a building known as St. Patrick’s College. The College is used and occuj)ied as a seminary for the education of young men students for the Roman Catholic priesthood. I t is admitted tha t the College is a building used or occupied for religious teaching, the question at issue between the parties being whether it is “ solely ” used and occupied for that purpose. The facts relied on by the respondent as showing that the building is not “ solely ” used or occupied for

(1) (I92rt) A.r. 128 : .17 r.L B . 317.

(2) (188.5) 16 Q.B.D. 163, at pp. 171. 173.

476 HIGH COURT

[1928.

H. C. or A.

religious teaching are tha t the rents reserved by certain leases

1928.

granted under the powers conferred by the St. Patrick's College

R oman{Manly) Act 1914, are by such leases made payable half-yearly at

Catholic

A r c h b ish o p

the College, tha t such rents are in fact paid there, and that receipts

OFfor such rents are issued from the College.

The rents are applicable

Sy d n e y

V.

Mbt b o -to purposes which include the upkeep and maintenance of the

POLITANCollege and of other buildings not connected with it or standing on

W a t er ,

Se w e r a g e ,

the parcel of land the subject of the present contest.

AND

D ra in a g eThe learned Chief Judge in Equity thought tha t on the admitted

B oa rd .

facts the College buildings were used as a sort of estate office at

<Javan Duffy J. Knox C..T. which rents payable to the appellant as trustee of the whole of the Starke J.lands comprised in the First Schedule to the Act above referred to

were to be paid, and tha t this fact removed the College buildings from the category of buildings occupied or used solely for the purpose of religious teaching.- We are unable to agree in this view. We can find nothing in the admissions to justify the conclusion that the College buildings were- used as a sort of estate office. The mere fact tha t rent was payable and paid a t the College buildings does not, in our opinion, amount to a use or occupation of those buildings or any part of them for the purpose of an estate office, nor is it any more inconsistent with their use solely for religious teaching than the receipt of rent or other moneys by an individual at his private residence would be with its use solely as a private residence.

The facts stated with regard to the Corpus Christi procession do not show any use of the buildings for purposes other than religious

teaching or, indeed, for any purpose a t all.

_

In our opinion the appeal should be allowed.

I sa a c s a n d P o w e r s J J , The claim for exemption, so far as it rests on par. (d) of sub-sec. 1 of sec. 88 of the Act fails, in our opinion. The words “ public charity ” in tha t pa.ragrp.ph, read in connection with the context in^that paragraph, and in,sec. 93 (see Manchester Corporation v. Me Adam (1) ) are not used by the Legislature in the artificial sense which looks back to- the days of Queen Elizabeth, but in the practical sensei of to-day, tha t to which the people of New South Wales would naturally attach to the words. But the

(1) (1896) A.C. 500.

40 C.L.R.]

OF AUSTRALIA.

case, upon the agreed facts, does, as we think, and for the relevant

H. C. O F A.

period, fall within the exempting provisions of par. (h) of the same

1928.

sub-section.

The subject land is, upon the facts before us, occupied

R omak Catholic

by and is used directly in connection with a building which is occupied

Ab c h b ish o p

OF

solely for religious teaching. I t is conceded tha t St. Patrick’s College

Sy d n e y

is occupied as a seminary for the education of young men students

V.

Me t b o -

for the Roman Catholic priesthood. That is unquestionably and

POLITAN W a t e r ,

by concession an occupation “ for religious teaching.” But the

Se w e r a g e ,

AND

terms of exemption include the word “ solely.” I t is claimed by

D ra in a g e

the respondent that by reason of one circumstance tha t condition B oard .

does not exist. The circumstance is set out in par. 12 of the

Isaacs J. Cowers J.

admissions in these words ;—“ Leases granted under the powers given by the Saint Patrick's College {Manly) Act 1914 of parts of St. Patrick’s College Estate being the land described in the Second Schedule to the said Act provide tha t the rents thereby reserved are to be paid half-yearly a t the said College and the rents so reserved are paid at the said College and receipts for such rents are issued from the said College. The said rents are applied for the purposes directed by the said Act.”

To the actual application of the rents we attach no importance whatever {Purvis v. Traill (1) ). But the learned Judge from whom this appeal comes thought tha t because the leases of the Second Schedule lands provide tha t the rents are to be paid half- yearly at the College, and the rents are in fact so paid and receipts are issued at the College,’ the building was not used or occupied solely for religious teaching. With deep respect we are not able to concur in that view. The leasing of the Second Schedule lands is expressly permitted by Parliament and plainly for the purpose of advancing the real purpose of the grant, namely, public worship and religious education. The receipt of the rents is in no way foreign to that real purpose (see per Parke B. in Purvis v. Traill (2) ), and their receipt at the College or elsewhere is subsidiary to tha t purpose. The provision in the leases tha t the rents are to be paid a t the College where the trustees may be found,, if not a t the episcopal residence^ IS little more than the common law would require if no such express provision were made, once there is an express promise to pay the

(I) (1S49) .3 K.V. :m . .

■ < { ■■

(2) (1849) 3 Ex., a t p. 3u0.

478 HIGH COURT

[1928.

H. C. OF A.

rent (Haldane v. Johnson (1) ).

No special portion of the building

1928.

was segregated or designated as an office or place for the purpose of

R omanpayment. The substance of the matter, as far as it can be gathered

Catholic

A r c h b ish o p

from the facts stated, is not tha t the building as such was during

OF

Sy d n e ythe period in question used or occupied as a rent-receiving office,

V. but tha t the personal obligation of the tenants to find their creditors

Me t r o ­

po lita nwas satisfied by finding them a t their official home and then and

W a t e r ,

Sbw h rao e ,

there discharging the debt, possibly even by means of the postman.

AND

D ra in ag eAs to the Corpus Christi procession, it is sufficient to say it is

B oa rd .irrelevant as the facts do not show any use of the building for that

Isaacs J.

Powers J.

purpose.

The appeal should be allowed.

H ig g in s J . The decision under appeal is tha t St. Patrick’s College a t Manly has no exemption from water, sewerage and drainage rates under sec. 88 of the Act of 1924. Sec. 88 (1) (h) has been already set o u t ; and the ground for the decision is that the College is not “ used solely ” for religious teaching. Three adjoining pieces of land are vested in the Archbishop as trustee—one for the College, one for the Archbishop’s residence, and the third has houses let on lease. The rents have to be applied for the upkeep, &c., of all the three sets of buildings. Under the existing leases the rents are payable and paid a t the College. The College is used for the training of priests for the Roman Catholic Church; but it is said by the learned Judge tha t i t is not used solely for religious teaching (to quote his very words) “ by reason of the fact that it is used as an office for the collection of the rents of the lands which are vested in the trustee by the Act of 1914.” The exemption from the rates is not claimed for the Archbishop’s residence or for the lands that may be leased : it is claimed for the College only.

With sincere respect, I find myself unable to concur with this decision. This is not a question of abstract law, but of the application of certain facts to words used by the Legislature in the Metropolitan WaJer, Sewerage, and Drainage Act of 1924; and the words, not being technical, have to be construed according to the vernacular language—uti loquitur vulgus. Having regard to

(1) (1853) 8 Ex. 689!.

40 C.Ij.H**!

479

OP AUSTRALIA.

the context, I think tha t the construction adopted in the decision

H . C. OF A.

1928

puts altogether too great a strain on the words “ building which is

R oman Catholic

used . ■

. solely ioT . . . religious teaching.” I t is not every

incidental or accidental or subordinate use tha t is referred to, but

A r c h b ish o p

OF

what I may call the functional use—the use from the point of view

S y d n e y

V.

of those who control the College. The College building may be used

Me t r o ­

for cooking for the students ; it may be used by a. sparrow sitting po lita n

W a ter ,

on the chimney ; or by a photographer for a photograph ; or by an

Se w e r a g e ,

AND

architect for a model; or by an aeronaut who wants to find out

D ra in a g e

where he is. But if one, knowing all the facts, were asked “ What

B oard .

is the building used for ? ” he would surely answer truly if he said

Higgins J.

“ it is used only for the training of priests.” The function as described in the private Act of 1914 is “ buildings . . . for educational pmposes ” as the Archbishop should authorize.

Looking at the context, it is seen tha t the numerous exemptions are based on purpose or function—land used for a public cemetery, or used for a common, or used for a public reserve or park, or used for a public charity, &c., solely for the purposes thereof, or used solely for a free public library, or used solely for the University or a college thereof, or occupied only for public works in course of construction for the Crown, or used or occupied solely for public worship or for religious teaching, or used or occupied solely as a playground for certain schools, &c. Here it is not alleged that there has been any departure from the function, the objective, of the building other than the receipt of rents by the trustee in pursuance of the leases. I t is not even alleged tha t any particular part of the building has been earmarked as for the Archbishop’s use only, either temporarily or permanently. As Dante said in his De Momrchia, “ everything exists for the sake of some end.” The sole end of the College for which it exists is training for the priesthood. I had some doubt at first whether the training for the priesthood is “ religious teaching” within the meaning of sec. 88 (1) (A). Perhaps what was primarily within the intention of the Legislature was religious teaching of the public ; but when it is clear tha t the education for the priesthood is rehgious, and tha t the priests are designed to spread the teaching through the community, we have

480

HIGH COURT

[1928.

H. C. O F A.

no right to qualify the broad words of the Legislature by imposing

1928.

a limit to those words—a limit which the Legislature has not seen

R oman

Catholic

fit to impose.

A rch b ish o i

As for sec. 88 (1) {d), it is not necessary for me to express any

OF

Sy d n e y

final opinion ; but, in order to avoid any misapprehension, I ought

V.

Me t r o ­to say th is ; I am not a t all convinced tha t the words “ public

po lita n

W a t e r ,

charity ” in sec. 88 (1) {d) do not cover the College lands so as to

Sew eragf;,exempt it from the rates. Ordinarily, the words “ pubhc charity ”

and

D ra in a g ecover “ charity ” in the widest sense—the technical, legal sense of

B oa rd .

the Statute of Elizabeth. I t is true th a t the other words, “ pubhc

Higgins J.hospital,” “ pubhc benevolent institution,” in {d) might be covered by the words “ pubhc charity ” in the technical, legal sense, and if so might be unnecessary ; but the maxims as to ejusdem generis or noscitur a sociis afford only a prima facie presmnption, and the presumption may not stand against the definite rule laid down by Lord Macnaghten in Commissioners for Special Purposes of Income Tax V. Pemsel (1) : “ In construing Acts of Parhament, it is a general rule . . . th a t words must be taken in their legal sense unless a contrary intention appears.” I doubt that the contrary intention clearly appears.

Appeal allowed. Suit dismissed with costs

including costs of this apjjeal.

Solicitors for the appeUant, Hughes & Hughes.

Solicitor for the respondent, R. W. Hooke.

B. L.

(1) (1891) A.C. 531, at p. 580.