Shire of Derby-West Kimberley v Yungngora Association Inc - [2007] WASCA 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SHIRE OF DERBYWEST KIMBERLEY -v- YUNGNGORA ASSOCIATION INC [2007] WASCA 233

CORAM: BUSS JA
MILLER JA
NEWNES AJA

HEARD: 21 AUGUST 2007

DELIVERED : 6 NOVEMBER 2007

FILE NO/S: CACV 10 of 2007

BETWEEN: SHIRE OF DERBYWEST KIMBERLEY
Appellant
AND
YUNGNGORA ASSOCIATION INC
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE M L BARKER (PRESIDENT)

MR P McNAB (MEMBER)

Citation :YUNGNGORA ASSOCIATION INC and SHIRE OF DERBY/WEST KIMBERLEY [2006] WASAT 378
File No :DR 582 of 2005

Catchwords:

Aboriginals - Local government - Incorporated Aboriginal association - Land held on pastoral lease - Cattle enterprise operated on pastoral lease by company controlled by the Aboriginal association - Aboriginal community located partly on pastoral lease - Employment and other benefits to community from cattle enterprise - Liability of association to pay rates on land - Whether land used exclusively for charitable purposes

Legislation:

Land Administration Act 1997 (WA), s 106, s 108
Local Government Act 1995 (WA), s 6.26

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr K M Pettit SC & Ms E M Stevenson
Respondent: Mr G M G McIntyre SC

Solicitors:

Appellant: McLeods
Respondent: Michael Whyte & Co

Case(s) referred to in judgment(s):

Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197
Aldous v Southwark Corporation [1968] 3 All ER 498
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236
Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 229 ALR 1
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531
Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120
Dingle v Turner [1972] AC 601
Hobart Savings Bank v Federal Commissioner of Taxation (1930) 43 CLR 364
Hope v Bathurst City Council (1980) 144 CLR 1
Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation (1971) 125 CLR 659
Maclean Shire Council v Nungera Co‑operative Society Ltd (1995) 86 LGERA 430
Moon v London County Council [1931] AC 151
Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98
Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297
Oxfam v Birmingham District Council [1974] 2 All ER 1071
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Re Compton; Powell v Compton [1945] Ch 123
Re Income Tax Acts (No 1) [1930] VLR 211
Re Mathew [1951] VLR 226
Royal Choral Society v Commissioners of Inland Revenue [1943] 2 All ER 101
Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159
Scottish Burial Reform and Cremation Society v Glasgow City Corporation [1968] AC 138
Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108
Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315
Toomelah Co‑operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48
Trustees of the Superior Council of Australia of the Society of Saint Vincent de Paul v Goulburn City Council [1974] 2 NSWLR 655
Verge v Somerville [1924] AC 496
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Williams' Trustees v Inland Revenue Commissioners [1947] AC 447
Yungngora Association Inc and Shire of Derby‑West Kimberley [2006] WASAT 378

BUSS JA: I agree with Newnes AJA.
MILLER JA: I agree with Newnes AJA.
NEWNES AJA: This is an appeal by the Shire of Derby‑West Kimberley (the Shire), from the decision of the State Administrative Tribunal (the Tribunal) to grant to the Yungngora Association Inc (the Association), exemption from the obligation to pay rates in respect of certain land, on the ground that the land was used exclusively for charitable purposes: Yungngora Association Inc and Shire of Derby‑West Kimberley [2006] WASAT 378.

The background

The Association is an organisation representing local Aborigines in the area in question and holds from the Crown, Pastoral Lease 3114/576 (the Land). The Land comprises what is known as the Noonkanbah pastoral station, in the far north‑west of Western Australia. A pastoral enterprise involving some 3,500 head of beef cattle is conducted on the Land by Noonkanbah Rural Enterprises Pty Ltd (NRE), a company controlled by the office‑holders of the Association.
In September 2004, the Association objected to the Shire's rate record on the ground that the rate record showed that the Land was rateable land whereas, the Association contended, the Land was not rateable by virtue of s 6.26(2)(g) of the Local Government Act 1995 (WA) (the Act), being land that was used exclusively for charitable purposes. The Shire disallowed the objection on the ground that the Land was used for a commercial cattle station and any charitable purposes for which it was used were incidental to its commercial use. The Association applied to the Tribunal to review the Shire's decision. The question before the Tribunal, therefore, was whether the Land was used exclusively for charitable purposes within the meaning of s 6.26(2)(g) of the Act.
The Tribunal held that it was. The Tribunal considered that the dominant use of the Land was charitable, being to improve the economic position, social condition and traditional ties to the Land of the local Aboriginal community. This usage was held not to be compromised by any collateral or non‑charitable use of the Land. Accordingly, the Tribunal held that the Land was used, and used exclusively, for charitable purposes.

The Shire now seeks leave to appeal against this decision. In accordance with an earlier direction of McLure JA, the application for leave to appeal is to be heard together with the appeal.

The relevant statutory provision

Section 6.26 of the Act provides, so far as relevant:
Rateable land
(1)Except as provided in this section all land within a district is rateable land.
(2)The following land is not rateable land -
(a)land which is the property of the Crown and -
(i)is being used or held for a public purpose; … [or]
(g)land used exclusively for charitable purposes;
…
(6)Land does not cease to be used exclusively for a purpose mentioned in subsection (2) merely because it is used occasionally for another purpose which is of a charitable, benevolent, religious or public nature.

The facts

The facts are not in dispute. The agreed facts, so far as relevant for the purposes of this appeal, are as follows:
1.The Land is the subject of a claim made to the Shire for rates exemption.
2.The Land covers an area of 169,791 hectares and is held by the Association.
3.The Land was transferred to the Association from the Noonkanbah Pastoral Company Pty Ltd in 1986.
4.The Land is subject to the provisions of the Land Administration Act 1997 (WA) in regard to pastoral leases.
5.The Land adjoins a 260 hectare parcel of land held by the Association in freehold.
6.The Association is incorporated under the Associations Incorporation Act 1987 (WA), and is a non‑profit body governed by a written constitution.
7.The Association has been endorsed as an income tax exempt charitable entity and as a deductible gift recipient for the purposes of income tax assessment, as per certificates from the Commissioner of Taxation.
8.The Association has constructed facilities on a parcel of land that straddles the boundary between the freehold land and the Land. Those facilities are 43 houses, a primary school, a high school, a community store and facilities for a TAFE programme and diabetic care clinic.
9.Approximately 350 people live in the community.
10.Apart from the area of land that contains community facilities, the Land contains a rundown original homestead, a machinery shed, two sets of cattle yards, some roads and dams.
11.There is a 75 kilometre access road to the community and the Land.
12.The Land is operated as a pastoral enterprise by NRE, with approximately 3,500 head of beef cattle.
13.NRE directly employs 10 community members and an additional eight to 10 community members during mustering. These employees are funded through the Commonwealth Development Employment Programme (CDEP), with a top up from station income.
14.NRE engages, by contract, a Department of Agriculture adviser, financial and audit advice and helicopter mustering assistance.
15.NRE provides training to its employees.
16.NRE runs at a loss, although the aim of its five‑year business plan is to provide a sustainable pastoral enterprise.
17.NRE supports the community store by being its largest customer (approximately $80,000 of expenditure per year) and sources its supplies through the store for this purpose, even though it could purchase items more cheaply elsewhere.
18.NRE provides meat to community members (approximately 250 to 300 per annum, at an estimated value of $100,000). Recipients of CDEP funds at the community pay a levy of $5 per week for this meat, amounting to approximately $20,000 per annum.
19.NRE carries out approximately $20,000 of road grading per annum on the Land.
20.Community members use roads on the Land to access areas of the Land for non‑pastoral enterprise purposes.
21.Approximately five light vehicles are owned by the pastoral enterprise. The vehicles are home garaged by employees of NRE and are used by community members. It is estimated that 30% of station fuel and vehicle maintenance costs are attributable to pastoral enterprise work, and 70% to community use valued at approximately $63,000.
22.Over the past five years, NRE has contributed:
•$4,727 towards the local diabetes treatment programme;
•$10,000 towards the expenses of native title claims for the community; and
•$40,000 towards feasibility studies for other users of the Land for the benefit of the community.
In addition to the agreed statement of facts, the Tribunal noted some additional facts from the documents filed with the statement of agreed facts (referred to at [17] of the Tribunal's judgment):
1.The directors of NRE are Aboriginal elders of the Yungngora community. The company is a management or service company that owns no assets. The directors of it appear to be common with the office bearers of the Association.
2.The gross income from cattle sales is substantial ($403,192 in NRE's 2005 financial year). However, in the 2005 financial year NRE made an operating loss of $120,022. Any surplus that is made is, however, destined for the Association's use.
3.Almost all of the members of the Association are or will be Aboriginal persons normally resident in the Yungngora community's boundaries: see cl 5 of the constitution of the Association.
4.The relevant recent history of the Yungngora community dates from around 1976 when the Commonwealth Aboriginal Land Fund purchased Noonkanbah pastoral station with the express object of 'allow[ing] the traditional people of Noonkanbah to return to their homelands'. Various employment and welfare programmes have run in tandem with this aim.
5.The Land is and has been since 1998 included in the Noonkanbah native title claim under the Native Title Act 1993 (Cth). That claim appears to have been settled, indicating that the whole of the pastoral lease is, or can be, used for traditional purposes by Aboriginal members of the Association.
6.Noonkanbah station's formal plan is 'to guide [the local community] towards developing a sustainable community owned pastoral enterprise, that will provide, opportunities for training, skill development, gainful employment and in turn improve the standard of living for the community[,] people and youth of [the] Yungngora community [which, in addition] will improve community morale and develop a sense of self determination and self sufficiency': statement of Mr Kim Carter, an agriculture adviser seconded from the Department of Agriculture.
7.The Association had received a Final Notice to pay rates in the sum of $14,905.91 due to the Shire no later than 5 November 2004.
The Tribunal also referred to the objects of association of the Association ([17]), which are as follows:
a.to support the development of the Community in all ways,
b.to help to bring about the self‑support of the Community by the development of economic projects and industries,
c.to hold shares in any company formed to carry out the objects of the Association,
d.to support education, job training, health services, work and housing for the Community,
e.to help and encourage the Community to keep and renew its traditional culture,
f.to help build trust and friendship between the Community and other people, and
g.to receive and spend grants of money from the Government of the State or of the Commonwealth.
The Tribunal considered that although 'Community' is not defined, in the objects of association it refers to the (mainly Aboriginal) people in the Yungngora community and within its boundaries (at [17]).

The decision of the Tribunal

The Tribunal said:
Thus, as appears from all of the above, the current ownership and use of the subject land is informed by the fact that over some decades successive State, but more particularly Commonwealth, governments and their agencies have to varying degrees (and with varying degrees of cooperation with each other) facilitated and funded - both directly and indirectly - a policy objective of building up the collective economic, social and 'traditional' position of Aboriginals associated with the subject land.
The further fact that such policy objectives are in part manifested (or perhaps even mandated) in 'business' enterprises and in the associated contractual and corporate arrangements referred to above, does not detract from this clearly established history.
Indeed, it seems clear that every relevant fact concerning the use of the subject land can be ultimately derived from or is connected to the broad policy objectives just identified, objectives also embraced by the Yungngora community itself. Likewise, the motivations of those pursuing such policy objectives cannot be entirely ignored: it includes the recognition and attempted amelioration of what may be characterised as the 'notorious plight of Aboriginal people' …
Thus, any findings as regards either the use of or the purposes of the use of the land in this review must be similarly informed, and these matters will consequently form an important part of the factual matrix in this case. This is not to say, of course, that any of this necessarily determines the matter either way. Nonetheless, such matters are hardly irrelevant to the questions to be determined [18] ‑ [21].
The Tribunal observed (at [22]) that the question before it was whether, on the above facts, the Land 'is land used exclusively for charitable purposes'. The Tribunal considered that there were thus two issues for determination:
1.whether the Land is used for 'charitable purposes'; and, if so,
2.whether it is used exclusively for those purposes.
On the first question, the Tribunal referred (at [25]) to Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 229 ALR 1, as authority for the proposition that the word 'charitable', being a word that has a technical legal meaning, when used in a statute should be understood in its legal sense as described in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, 583, unless a contrary intention appears.
The Tribunal said (at [27]) that the principles derived from Pemsel had been applied in Australia, in relation to Aboriginal organisations and their activities, to produce 'a clear line of authority in reported cases which suggests, on the face of it, that the activities of the applicant should be considered as charitable'.
The Tribunal referred, by way of example, to Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236 where land leased by certain Aboriginal‑controlled associations, and used or occupied for the purposes of 'town camps' - providing, in effect, housing for Aboriginal people in Alice Springs - was used or occupied for the purposes of a charity; Toomelah Co‑operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48, where it was held that land used by a community advancement society for Aboriginal housing and employment projects was used or occupied for the purposes of a 'public charity'; and Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197, where it was held that a Commonwealth‑controlled company which provided accommodation of Aborigines, charging a fee for doing so, was using or occupying the land for the purposes of a 'public charity'.
The Tribunal (at [31]) relied upon the judgment of Wheeler J (as her Honour then was) in Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108, where Wheeler J had endorsed as still true, the statement of O'Bryan J in Re Mathew [1951] VLR 226, in the course of holding that a trust for the benefit of Aboriginal people was a valid charitable trust, that Aboriginal people, as a class, were 'notoriously in need of protection and assistance'.
The Tribunal noted that Wheeler J had gone on to examine the objects of the association in Bindibindi, which the Tribunal considered were broadly similar to those of the Association. The Tribunal considered (at [35]) that the effect of the decision of Wheeler J was that subsequent objects, even those which could be carried out for a non‑charitable purpose, were to be read as not invalidating the charitable intent of the first object of the Association, on the basis that the constitution should be interpreted, like any other written instrument, as a whole and with apparent inconsistencies reconciled so far as possible.
Similarly, the Tribunal noted (at [36]) that in Toomelah Co‑operative Ltd v Moree Plains Shire Council, Stein J (as he then was) had observed (at 57) that in interpreting objects clauses 'substance should prevail over form', and that in the case before him the aim to benefit the Aboriginal community did not stem from the use of any particular words but from the overall purpose of the organisation.
The Tribunal concluded that:
In our view, the [Association's first] object of 'support [for] the development of the [Yungngora] Community in all ways', when read in the context of the evident and overall purpose of the [Association], which is to relevantly benefit the local Yungngora Aboriginal community found at Noonkanbah, is 'charitable' in nature [38].
The Tribunal noted, too, that courts have paid particular attention to the 'public character' of a charity. The Tribunal referred to Toomelah Co‑operative Ltd v Moree Plains Shire Council, Maclean Shire Council v Nungera Co‑operative Society Ltd (1995) 86 LGERA 430 and to the conclusion of Wheeler J in Bindibindi that a purpose was of a sufficiently 'public' nature to be considered charitable if those who benefited formed a significant proportion of the local community. The Tribunal noted that, unlike in Bindibindi, in the present case the Association's constating instrument appeared also to open up the possibility of non‑Aboriginal members of the Association.
The Tribunal considered (at [43]) that the evidence suggested that a very large proportion of the Yungngora Aboriginal community directly benefited from the use of the Land, noting, by way of an example, that somewhere between 250 ‑ 300 members of the community, out of a population of approximately 350 people, receive significantly subsidised meat provided by NRE.

The Tribunal considered there was no need for an express finding that an enforceable charitable trust existed in order for the Land to be used for exclusively charitable purposes. If such a requirement did exist, the Tribunal considered a finding could be made that a constructive trust was created (at [44]).
The Tribunal concluded:
Having regard to the agreed facts and the other matters discussed above we conclude that the land is here being used as part of a general scheme to improve the economic position, social condition and traditional ties for the benefit of relevant Aboriginals, Aboriginals who, as Wheeler J [in Bindibindi] observes are, by the standards of the community as a whole, generally poor, much more likely to be in ill health, and [be] likely to require special provision to be made for their education'. Such a general scheme is consistent with the charitable objects of the applicant, objects which are also directed to ameliorating those concerns.
But is this relevantly 'charitable' use of the land? We think, principally applying Bindibindi, that the answer is Yes [47] ‑ [48].
Whilst noting that the pastoral operation in the present case is significantly larger than the three hectares of land used for public housing in Bindibindi, and that the beef cattle business is 'dominant in the affairs of the [Association]' and has an 'undeniable commercial feel', the Tribunal said:
Nevertheless, the purpose of the operation at this point of time, apart from being a source supplying subsidised meat … and being obviously connected with the return and exploitation of traditional lands, is clearly undertaken 'to assist Aboriginals to become economically independent and to provide employment opportunities': Northern Land Council v Commissioner of Taxes (NT) (2002) 141 NTR 1, at [38], per Mildren J (Martin CJ concurring).
… such assistance and opportunities may … be charitable in nature if they are of relevant benefit to Aborigines. Further, such activities assist the pursuit of land rights, the preservation of traditional culture, and self‑determination, activities which have a relevant benefit to Aboriginals.
As we have already held in respect of the applicant, such assistance and opportunities are charitable objects pursued by the applicant (see objects a) to e) of the applicant's constating instrument [cl 3] set out above, and our finding of comparability with the objects in Bindibindi and our application to this case of the findings of Wheeler J) [51] ‑ [53].
The Tribunal considered there to be nothing necessarily inconsistent arising from the use of the Land pursuant to the legal obligations of the holder of a pastoral lease (at [54]). Nor was the much greater scale of the activities, compared to the earlier cases, a factor which affected the principle to be applied.
The Tribunal concluded that the Land was therefore used for charitable purposes.
It then turned to the question of whether the use of the Land was exclusively for charitable purposes. Before the Tribunal the Shire had argued that the use of the Land as a pastoral lease was more than a 'mere incident' of a use for a charitable purpose and was either the predominant use of the Land or a distinct and separate use of the Land. The Shire contended that whilst the use of the Land provided some employment and training opportunities for community members, the provision of those opportunities was not an end in itself; rather, it was like letting church lands for the purpose of raising income for church purposes.
The Tribunal referred to the statement of Fullagar J in Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159 that '[t]he whole character and atmosphere of the place must be of vital importance' (187) and the observation of Wheeler J in Bindibindi that 'the relationship between what may appear to be commercial enterprises and a charitable purpose is a matter of fact in each case, but [the activities described] appear to me to be directed towards serving the dominant charitable purpose' [39].
The Tribunal said that in the present case the assets held by the service company, the scale and dominance of the pastoral operation, and its central role and commercial form 'cannot be denied', but concluded:
We have already held that the stated purposes of the applicant are charitable and that an enforceable charitable trust of the requisite character is in existence, and that questions of form and scale are essentially irrelevant to the determination of these issues. The purpose of the applicant in holding and operating the pastoral lease is in our view directed not to a separate, say, profit‑making operation as an end in itself; rather, as is clear from the discussion above, it is the most direct or outward manifestation of all of the charitable purposes that we have identified: namely those related to the social, economic and 'traditional' advancement of a relevant group, currently in need, by their use of that lease (and the consequent use of the subject land). Such is the clear direction of the history of the place over the last 30 years or so, which we have drawn attention to at the commencement of these reasons. The returning of land to the traditional owners - a very poor group by Australian standards - represented in large degree by the applicant holding and exploiting the extant pastoral lease is the key to the proper characterisation of the true purpose of the pastoral operation.
We stress, however, that this is not a matter set in stone. At some point it may become clear that the dominant purpose of operating the lease has lost its charitable nexus or cover and has become a quite separate non‑charitable end in itself. But that point has not been reached on the material before us [63] ‑ [64].
The Tribunal concluded that the Land was currently used exclusively for charitable purposes within the meaning of s 6.26 of the Act and therefore was not rateable land.

The appeal

The grounds of appeal

The Shire initially relied on the two following grounds of appeal:
1.The Tribunal erred in law in concluding that the dominant purpose of the pastoral enterprise use of the land is 'to assist Aboriginals to become economically independent and to provide employment opportunities'. The Tribunal's conclusion on the facts should have led it to the conclusion that, although such assistance might be the ultimate motivation for operating the pastoral enterprise, it is not the purpose for which the land is used.
2.The Tribunal erred in applying the principles of law relevant to a determination of exclusivity of use in the context of charitable purpose under a rating statute. The Tribunal's conclusions on the facts should have led it to the conclusion that irrespective of any charitable purpose use of the land achieved through the pastoral enterprise, and of the ultimate motivation behind the operation of that enterprise, the pastoral enterprise use operates as a separate and distinct commercial use of the land on a scale that is disproportionate to any charitable purpose use of the land.
During argument on the appeal, the Shire was given leave to add the following ground of appeal:
3.The Tribunal erred by relying upon an irrelevant consideration, namely the objects of the corporate lessee of the land, Yungngora Association Inc, and by deciding that issue instead of deciding whether the use of the land was charitable.
The first two grounds of appeal are not easy to understand, as senior counsel for the Shire acknowledged. As emerged in the course of argument, however, the appeal can be reduced to one central proposition, namely that the Tribunal erred in law in concluding that the Land was used exclusively for charitable purposes, in that the Tribunal failed to have regard to the actual use to which the Land was substantially put, namely to operate a commercial pastoral enterprise, and instead had regard to charitable purposes which the Association sought to achieve as a consequence of conducting the pastoral enterprise on the Land.
I understood that the third ground of appeal was also intended to convey that contention.

A question of law?

An appeal lies from a decision of the Tribunal only by the leave of this court and only on a question of law: s 105 of the State Administrative Tribunal Act 2004 (WA). The first question, therefore, is whether the present appeal is on a question of law. A mixed question of fact and law is not a question of law under s 105 of the Act: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [53] per Buss JA.
The distinctions between questions of law, questions of fact and mixed questions of fact and law can often be difficult to draw but it is, I think, clear, that the meaning of a technical legal expression is a question of law, as, generally, is the question whether facts fully found fall within the provision of a statutory enactment.
In Vetter v Lake Macquarie City Council (2001) 202 CLR 439, Gleeson CJ, Gummow and Callinan JJ, having observed that 'whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law' [24], described the following passage from the judgment of Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 as 'comprehensively … stat[ing] the law on this topic in this country' [25]:
Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees, which was adopted by Latham CJ in Commissioner of Taxation v Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said:
'… this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The "facts" referred to by Lord Parker … are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.'
However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens was just such a case. The only question raised was whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact (7).
Gleeson CJ, Gummow and Callinan JJ referred (at 451) with approval to the statement of Mason J that a question exclusively of law arises if on the facts found only one conclusion is open.
In the present case it was common ground, and it is plainly the case, that the expression 'charitable purposes' is used in the Act in a technical legal sense, not in its common meaning. The question on this appeal, whether, on the facts as found, the Tribunal was correct in finding that the Land was used exclusively for 'charitable purposes', is, in my view, a question of law.
That it is a question of law would appear to be supported by the decision of the English Court of Appeal in Royal Choral Society v Commissioners of Inland Revenue [1943] 2 All ER 101. There, Special Commissioners had found that the society was not a body 'established for charitable purposes'. The society appealed successfully to Macnaghten J. Upon an appeal to the Court of Appeal, the appellant argued that the finding of the Special Commissioners was a finding of fact which was binding on the court. Lord Greene MR, with whom the other members of the Court of Appeal agreed, said:
It is the business of the Commissioners to find facts. It is a question of law whether, upon the facts so found, the particular body in question is a body established for charitable purposes. That is a question of law; and in no circumstances can it be turned into a matter of fact (103).
It is to the question of law raised by this appeal that I now turn.

Was the Land used exclusively for charitable purposes?

In order to be charitable it must be found that the purpose in question is within the spirit and intent of the preamble to the Charitable Uses Act 1601 (Imp) (the Statute of Elizabeth) and is a purpose beneficial to the public: Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation (1971) 125 CLR 659; albeit, at least in England, the requirement that there be a public purpose does not apply in relation to the relief of poverty: see Dingle v Turner [1972] AC 601.
The effect of the preamble to the Statute of Elizabeth was stated by Lord Macnaghten in Pemsel as follows:
… 'Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community; not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do, either directly or indirectly (583).
Lord Macnaghten, however, observed (at 581) that the enumeration of charities in the Statute were not to be taken as the only objects of charity, but were given as instances.
In Hobart Savings Bank v Federal Commissioner of Taxation (1930) 43 CLR 364, Dixon J pointed out that:
The well known classification of … Lord Macnaghten affords a guide [to the application of the word 'charitable'] but not a definition. 'The method employed by the Court,' said Chitty J in In re Foveaux 'is to consider the enumeration of charities in the Statute of Elizabeth, bearing in mind that the enumeration is not exhaustive. Institutions whose objects are analogous to those mentioned in the statute are admitted to be charities; and, again, institutions which are analogous to those already admitted by reported decisions are held to be charities. The pursuit of these analogies obviously requires caution and circumspection. After all, the best that can be done is to consider each case as it arises, upon its own special circumstances.' This is a safe but unenlightening conclusion. But the Courts seem now to have ventured from its dark security so far as to risk the modest generality that when, from motives which are altruistic, benevolent or philanthropic, purposes are put in execution for the benefit of the community, or of a considerable section or class, which do in fact tend to the amelioration of mind, manner or morals, or the relief of misfortune and are of a nature allowed by law and consonant with the received notions of morality, then these objects will be considered 'charitable' (374 ‑ 375).
The condition that to be charitable a purpose must tend to benefit the public is satisfied if the purpose tends to the benefit of the public at large, or a class or section of the public: Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315, 321 per Dixon CJ, with whom Fullagar and Kitto JJ agreed.
It is difficult, and probably impossible, to formulate a satisfactory test by which to determine whether in any particular case a particular class of persons constitutes a section of the public in order to establish that the purpose is charitable. The fact that only a limited number of people can benefit does not mean that the purpose is not a public one. A purpose does not lose its public character simply because it is limited 'by reference to locality, to conditions of people, to their disabilities, defects or misfortunes and by reference to many other attributes of men and thing': Thompson v Federal Commissioner of Taxation, 321.
But a purpose will not be a public one if it is merely for the benefit of particular private individuals; it must be for the benefit of the community or an appreciably important class of the community: Williams' Trustees v Inland Revenue Commissioners [1947] AC 447, 457 per Lord Simonds. So while the inhabitants of a parish or town, or any particular class of such inhabitants, may be the objects of such a gift, private individuals, or a fluctuating body of private individuals, as such, cannot: Verge v Somerville [1924] AC 496. Thus, if the beneficiaries are defined as descendants of a named person or as employees of a named company, the purpose will not be regarded as one for the benefit of a section of the community: see Re Compton; Powell v Compton [1945] Ch 123, Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297, cf Dingle v Turner.
In Thompson v Federal Commissioner of Taxation, Dixon CJ (at 323 ‑ 324) referred with approval to the following description by Lowe J in Re Income Tax Acts (No 1) [1930] VLR 211 of what, in this context, constitutes the public or a section of the public:
Having regard to the composition of the public, certain large groups may readily be recognised, the members of which have a common calling or adhere to a particular faith or reside in a particular geographical area. There is no bar which admits some members of the public to those groups and rejects others. Any member of the public may, if he will, follow a particular calling, adhere to a particular faith, or reside within a particular area. Of the members of such a group it may be said in a real sense that they are primarily members of the public, and such a group may well constitute a section of the public. They stand on one side of the line. Each group, it is true, may consist of many individuals, but number alone is not the criterion by which to determine whether the group constitutes a section of the public. A club, a literary society, a trade union may all have numerous members, but I think that none of these could properly be called a section of the public. They stand on the other side of the line. The distinguishing feature of each of these latter bodies is that it is an association which takes power to itself to admit or exclude members of the public according to some arbitrary test which it sets up in its rules or otherwise. Each of them does oppose a bar to admission within it. It is not one of the groups into which the community as a matter of necessary organization or by convention is divided, but it is in a sense an artificial entity which exists for the benefit of its members as members thereof and not as members of the public (222 ‑ 223).
The fact that some individuals who do not fall within the class sought to be benefited may succeed in taking advantage of the benefits intended for that class, does not detract from the charitable nature of purposes which are otherwise charitable: Pemsel, 583, Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully, 174.
It must also be recognised that what constitutes a charitable purpose may change as new social needs arise or old ones cease to exist: see Scottish Burial Reform and Cremation Society v Glasgow City Corporation [1968] AC 138, 154 per Lord Wilberforce.
In the present case, while it argued that the Land was not used exclusively for a charitable purpose, I did not understand the Shire to contest that if land is used for the purpose of improving the economic position, social condition and traditional ties of an Aboriginal community, that will generally be a charitable use of the land. I think that that is clearly the case. There is a significant body of authority which supports that view.

Thus, for instance, in Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120, Bignold J held that the provision by the applicant of housing assistance to local Aborigines could be regarded as involving the relief of poverty and other functions of the applicant 'could be accommodated under the fourth head in Pemsel, especially given the widespread recognition in the common law of Australia of the plight of Aborigines in the Australian community in terms of their socio‑economic status, opportunities for advancement, and the legacy of dispossession that was the inevitable result of British settlement in this country' (125). His Honour continued:
The interpretation of the purposes contained within the preamble to the Statute of Elizabeth has been recognised to be subject to an 'evolutionary process' that is sensitive to the societal context in which a court is called upon to determine 'whether a particular purpose is sufficiently analogous to these listed purposes to be regarded as charitable by the law': per Lord Wilberforce in Scottish Burial Reform & Cremation Society v Glasgow Corporation [1968] AC 138. Accordingly it is merely to give due recognition to the evolutionary nature of this process of drawing analogues with those purposes contained within the preamble to conclude that in Australia at the present time, a trust for the advancement of Aboriginal people is a charitable trust within the fourth limb of Pemsel's case (125 ‑ 126).
In Aboriginal Hostels Ltd v Darwin City Council, Nader J said:
I would not have regarded authority as necessary for the proposition that 'Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance': Re Mathew [1951] VLR 226 at 232 and Re Bryning [1976] VR 100. It is true that those cases might well be regarded as lacking in persuasive force in the present circumstances in Darwin by their considerable separation in time and place. As Lush J said in Re Bryning: 'That decision (Mathew) does not lead to the result that Aboriginals are to be classified perpetually as in need of protection and assistance' (p 101). However, any ordinary informed person living in Darwin knows that aboriginal persons in the Northern Territory are, in general, in considerable need of special consideration and assistance.
I respectfully agree with these dicta. It can, I think, equally well be said that any ordinary informed person in Western Australia knows that, in general, Aboriginal people living in, among other places, the north of this State are currently in considerable need of special consideration and assistance. The Shire did not seek to suggest that the position of the members of the community was otherwise. It was implicit in the Shire's approach before the Tribunal and on this appeal that it accepted the members of the community were in need of such consideration and assistance.
I did not understand it to be in issue that the members of the community who are to benefit from the activities of the Association constitute a class of persons sufficient to satisfy the requirement that the purpose be of a public nature. In any event, in my view that is plainly the case.
The Shire contends, however, that while the Land may be used to some extent for charitable purposes, it is clear on the facts as found that it is not used exclusively - or even primarily, for that matter - for charitable purposes.
In my view, while the Land is used in some respects for the improvement of the economic and social position of the community and may thereby be used for charitable purposes - for instance, in the training and employment of some members of the community in the pastoral enterprise, and to provide housing and other facilities for the community (to the extent those facilities have been constructed on the Land) - on the facts it was not open to the Tribunal to find that the Land was used exclusively for charitable purposes.
The focus of the exemption under the Act is upon the use of the land in question. In determining the purpose or purposes for which land is used, the focus must be on what is done on the land, not on what use is made, or is going to be made, of what is done on or derived from the land: see Moon v London County Council [1931] AC 151; Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98.
I consider, with respect, that the Tribunal fell into error by focussing on the benefits the pastoral enterprise enabled the Association to provide to the members of the community, rather than on the use to which the Land was actually put.
Thus the Tribunal referred (at [47]) to the Land being used 'as part of a general scheme to improve the economic position, social condition and traditional ties for the benefit of relevant Aboriginals' and (at [51]) to a purpose of the pastoral enterprise being to provide assistance and opportunities to assist the members of the community to become economically independent and to assist activities such as the pursuit of land rights, the preservation of traditional culture, and self‑determination. I should say, with respect, that it is not apparent how the carrying on of the pastoral enterprise on the Land would itself assist in the pursuit of land rights, the preservation of traditional culture, or self‑determination, aside from providing the Association with the economic means to assist in the maintenance of the community and facilitate the pursuit of those activities by the community.
The Tribunal concluded that the Land was used exclusively for charitable purposes because the purpose of the Association in holding and operating the pastoral lease was directed, not to a separate profit‑making operation as an end in itself, but rather, it was 'the most direct or outward manifestation of all of the charitable purposes that we have identified: namely those related to the social, economic and "traditional" advancement of a relevant group, currently in need, by their use of that lease (and the consequent use of the subject land)' [63].
There is, however, a distinction between, on the one hand, the use of land for a charitable purpose and, on the other, its use for the purpose of making what is derived from the activities on the land available to be applied for charitable purposes. Accordingly, it has been held that land is not used for charitable purposes where the land is used for the purpose of raising funds to be used for charitable purposes.
In Aldous v Southwark Corporation [1968] 3 All ER 498, Winn LJ contrasted the actual management and administration of charitable endowment property (which the Court of Appeal found was itself a charitable purpose) with the raising of funds for charitable purposes:
I have no doubt that … merely to set out to raise money, to run a business or to buy and sell property, for example, stocks and shares, in order to make money, albeit with the motive of paying that money over so that it will be used for charitable purposes, is not making use of the premises in which such activities are conducted for charitable purposes. It is making use of them for a purpose or purposes of which the motive is to make the outcome of the activities available to those who will apply that income for charitable purposes (505).
See, too, to similar effect, the judgment of Denning MR in that case at 501.
In Oxfam v Birmingham District Council [1974] 2 All ER 1071, the plaintiff was a charitable organisation whose main purpose was the relief of poverty. It ran 'gift shops' used principally for the reception and sorting of articles donated to it and for the retail sale of most of those articles. The income from those shops was used by the plaintiff to fund its charitable activities. The 'gift shops' were also used to a minor extent for the sale of handicraft made by poor people, and of articles made by a subsidiary of the plaintiff which publicised the plaintiffs and made profits for it. The shops were manned by volunteers and occupied at a low rent or rent free.
Templeman J held that the premises occupied by the shops were not 'used for charitable purposes' within the meaning of the relevant rating legislation. His Honour noted that the activities at the shops promoted the activities of Oxfam and helped extend the ambit and usefulness of the operations of Oxfam, but none of the activities carried on at the shops assisted directly in the relief of poverty, except the sale of handicrafts made by poor people for which the shops provided a necessary outlet for sale. But that formed only a very small part, some 7%, of the activities of the shops. The principal activities - the collection, sale and sorting of gifted articles - appeared to be, or to be analogous to, the carrying on of a retail shop for the purposes of fund raising. Templeman J, following the decision of the Court of Appeal in Aldous v Southwark Corporation, held that as the premises were used principally for raising funds they were not premises 'used for charitable purposes'. The fact that the funds were used for charitable purposes elsewhere did not affect the way in which the use of the land in question should be categorised.
That case was distinguished on the facts in Trustees of the Superior Council of Australia of the Society of Saint Vincent de Paul v Goulburn City Council [1974] 2 NSWLR 655, but the principle was not doubted.
It is also not enough that the primary or main object of the use of the land is for charitable purposes, unless the land is used exclusively for those purposes.
In Nunawading Shire v Adult Deaf & Dumb Society of Victoria, the relevant legislation provided that land was not rateable property if it was used exclusively for charitable purposes. The land in question was held by the Adult Deaf and Dumb Society of Victoria. The Society housed, trained and instructed some deaf and dumb people on the land and maintained a flower garden as a means of doing so. In addition, a business of selling flowers from the garden to the public was carried out and the income from that business (which was substantial) was applied to fund the Society. The Society also allowed boating and picnicking on the land for a fee, which was also used for the upkeep of the institution. The memorandum of association of the Society contained some objects which were charitable, such as providing maintenance and technical education for the adult deaf, and some which were not, such as carrying on farms, nurseries, orchards, homes and the like.
The High Court held that the land was not used exclusively for charitable purposes within the meaning of the legislation. The court found that the activities of using the land as a form of recreational reserve and of selling flowers did not constitute use of the land for charitable purposes. The court considered that while the objects of the Society might throw some light upon the use of the land, they were not conclusive. The court went on to say:
It is true that the motive for establishing the flower garden was the treatment and instruction of the deaf and dumb. The inquiry, however, is not what was the motive for bringing, or … the sequence of ideas that brought, the land into use, but whether that use was exclusively for charitable purposes. It is not enough that the primary or main object of the use of the land was for charitable purposes, unless it can be affirmed that the land was used for these purposes only. The use of the land in the present case was twofold - (1) the treatment and training of the inmates of the Home, and (2) the carrying on the business of growing and selling flowers to assist in the upkeep of the institution. The latter purpose is not in any sense a charitable purpose, and so excludes the exemption claimed. Some reliance was placed upon the fact that the proceeds from the sale of flowers were applied to the upkeep of the institution, but the appropriation of these proceeds is not the criterion for determining the purpose for which the land was used (104).
That does not mean, however, that any benefit, not of itself of a charitable nature, derived from the land in question precludes a finding that the land is used exclusively for charitable purposes. The High Court pointed out in Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully that Nunawading was not authority for the proposition that land is not used exclusively for charitable purposes where the charity derives some subsidiary and incidental benefit flowing from the carrying out of that use.
In Salvation Army (Vic) Property Trust, farming land was registered as a reformatory and used for the reception and training of delinquent boys in farming activities. The produce of the farm in excess of its own domestic requirements was sold and the returns used to make good losses incurred in the conduct of the boys' accommodation on the land. The High Court held that the appellant was entitled to an exemption from rates on the basis that the land was used 'exclusively for charitable purposes' within the meaning of the Local Government Act 1946 (Vic). Dixon, Williams and Webb JJ said:
As we understand the judgment [in Nunawading] the Court decided that the land was not being used exclusively for charitable purposes because it was also being used for another collateral purpose. We do not understand the judgment as deciding that land is not used exclusively for charitable purposes where the charity derives some subsidiary and incidental benefit flowing from the carrying out of that use. In the Nunawading Case the Court found that the society was carrying on upon the land as a distinct purpose the business of growing and selling flowers. In the present case the magistrate found that the sole object of the institution in carrying on the various farming activities on the land was to achieve the charitable purpose of giving the boys committed to its charge an elementary education in these activities. If this finding can be sustained there is in the present case no dual use as there was in the Nunawading Case. Farming activities necessarily result in the production of various forms of primary products. It would be fantastic to hold that the land would not be rateable if the appellant destroyed or gave away the surplus products resulting from such training that remained after satisfying the needs of the inmates but that it would be rateable if it disposed of such surplus at a profit and used that profit in aid of the revenues of the institution. There is nothing in the evidence to suggest that the appellant is carrying on the farming activities to a greater extent than is reasonably necessary to achieve the above purpose or that under the cloak of this purpose it is really engaged in carrying on the business of a farmer for the purposes of gain (169).
Dixon, Williams and Webb JJ concluded that the proper test for determining whether land is used exclusively for charitable purposes is that if land is used for a dual purpose, then it is not used exclusively for charitable purposes although one of the purposes is charitable. But if the use of the land for a charitable purpose produces a profitable by‑product as a mere incident of that use, the exclusiveness of the charitable purpose is not thereby destroyed.
In my view, any charitable purposes for which the Land is used involve much the lesser part of the activities conducted on the Land. The 'whole character and atmosphere of the place' is of a commercial enterprise rather than a charitable use, involving a use of the Land for the distinct purpose of carrying on a pastoral business.
The Land comprises some 170,000 hectares, on which NRE runs a substantial pastoral enterprise involving some 3,500 head of cattle, with gross income from cattle sales in the 2005 financial year in the sum of $402,192 and an operating loss of $102,022. NRE is a service or management company controlled by the Association.
The Land is held by the Association on a pastoral lease and, as appears from the agreed facts, is subject to the provisions of the Land Administration Act. That Act imposes a number of obligations on a lessee of a pastoral lease which are relevant to the use to which the Land may be put. For instance, s 106 provides that, except in accordance with a permit issued under div 5 of the Act, a pastoral lessee must not use land under a pastoral lease for purposes other than, relevantly, the commercial grazing of stock and other activities ancillary to that use; and s 108 provides that a pastoral lessee must, to the satisfaction of the Pastoral Lands Board, at all times manage and work the land under the lease to its best advantage as a pastoral property. There was no evidence that any permit under div 5 of the Act has been obtained by the Association to alter its obligations under s 106 of the Land Administration Act.
The community facilities occupy, at best, a very small part of the Land. In fact, the extent to which the community facilities have been constructed on the Land at all, as opposed to the adjoining freehold land owned by the Association, is unclear. The agreed facts state simply that the community facilities are on a parcel of land that straddles the boundary between the freehold land and the Land. Apart from such community facilities as may be constructed on the Land, the only improvements on the Land appear to be related, at least principally, to its use as a pastoral property.
While NRE employs, and trains, 10 community members in the pastoral enterprise on a full‑time basis, and an additional eight to 10 community members during muster, the number of community members involved is small in the context of a total community population of some 350 people. It is not suggested that the number employed in the pastoral enterprise will increase to any extent over time or that employment is on a rotational basis so that a greater number of members of the community will ultimately be trained, with a view to finding employment.
There are some other benefits to the community but they are clearly incidental to the pastoral enterprise. Thus, NRE is the largest customer of the community store, provides subsidised meat to some 250 to 300 members of the community, carries out grading of roads on the Land, those roads being used by community members to access the Land for non‑pastoral purposes, and has five motor vehicles which are available to community members for non‑pastoral purposes.
NRE has also provided some financial assistance to the community, for a local diabetes treatment programme, for the expenses of native title claims for the community and towards what is rather vaguely described in the agreed facts as 'feasibility studies for other users of the Land for the benefit of the Community'. While the pastoral enterprise is currently running at a loss, any future surplus will be used for the benefit of the community.
In my view, however, those benefits to the community and its members are not sufficient for a finding that the Land is used exclusively for charitable purposes. It is not sufficient that the pastoral enterprise provides funds or other resources which the Association uses for charitable purposes or that any profits which are ultimately derived from the business will be used by the Association for charitable purposes through other measures aimed at improving the lot in life of the members of the community. Nor is it sufficient, either alone or in combination with the other benefits, that the existence of the pastoral enterprise offers employment and training to some members of the community or facilitates the pursuit of other objectives of benefit to the members of the community.
The fact that the activities on the Land are a source of funds or other resources used by the Association for charitable purposes, or that the object of the pastoral business is to provide the resources by which those purposes might be achieved, does not, in my view, alter the nature of the use to which the Land is currently put. The Land is not, except to a small degree, used for charitable purposes; rather it is used essentially for the non‑charitable purpose of operating a pastoral business, albeit with the object of providing resources which may be used for charitable purposes. Indeed, even if that non‑charitable purpose were not the main purpose for which the Land were used, it would nevertheless be a distinct purpose so that, at the least, the Land would be used for a dual purpose.

It follows, in my view, that the Land is not used exclusively for charitable purposes within the meaning of s 6.26 of the Act.

Conclusion

I consider that the Tribunal was in error in concluding that the Land was used exclusively for charitable purposes. The appeal has been made out. I would grant leave to appeal, allow the appeal and set aside the order of the Tribunal.