Southern Cross Care (Tasmania) Incorporated v Paul
[2018] TASFC 9
•12 November 2018
[2018] TASFC 9
COURT: SUPREME COURT OF TASMANIA
CITATION: Southern Cross Care (Tasmania) Incorporated v Paul [2018] TASFC 9
PARTIES: SOUTHERN CROSS CARE (TASMANIA)
INCORPORATED
v
PAUL, Andrew
SOUTHERN CROSS CARE (TASMANIA)
INCORPORATED
vGILL, Martin
SOUTHERN CROSS CARE (TASMANIA)
INCORPORATED
vARNOLD, Gary
SOUTHERN CROSS CARE (TASMANIA)
INCORPORATED
vARNOLD, Gary
SOUTHERN CROSS CARE (TASMANIA)
INCORPORATED
v
HEATH, Nick
FILE NOS: 818/2018, 819/2018, 820/2018, 826/2018, 827/2018
DELIVERED ON: 12 November 2018
DELIVERED AT: Hobart
HEARING DATE: 1 October 2018
JUDGMENT OF: Blow CJ, Estcourt J, Geason J
CATCHWORDS:
Real Property – Rates and charges – Rating of land – Rateable land – Exemptions – Public charities and benevolent institutions – Use or occupation of land – Independent living units owned by charitable organisation and occupied by aged persons as residences – Whether occupied exclusively for charitable purposes.
Local Government Act 1993 (Tas), s 87(1)(d).
West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65, followed.
Aust Dig Real Property [1797]
REPRESENTATION:
Counsel:
Appellant: B Walker SC, F Ashworth
Respondents (818 & 819/2018): S B McElwaine SC
Respondents (820, 826 & 827/2018): S B McElwaine SC, D J D Morris
Solicitors:
Appellant: Page Seager
Respondents (818 & 819/2018): Shaun McElwaine + Associates
Respondents (820, 826 & 827/2018): Simmons Wolfhagen
Judgment Number: [2018] TASFC 9
Number of paragraphs: 49
Serial No 9/2018
File Nos: 818/2018
819/2018, 820/2018, 826/2018, 827/ 2018
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v ANDREW PAUL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v MARTIN GILL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v NICK HEATH
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
ESTCOURT J
GEASON J
12 November 2018
Orders of the Court (as to each appeal)
Appeal allowed.
Order of the Magistrates Court (Administrative Appeals Division) set aside.
Decision of the respondent set aside.
That the rates notice to which the appeal relates be amended by deleting the requirement to pay any general rate.
That the respondent cause to be repaid to the appellant all monies paid by the appellant in the form of general rates pursuant to that rates notice.
Serial No 9/2018
File Nos: 818/2018
819/2018, 820/2018, 826/2018, 827/ 2018
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v ANDREW PAUL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v MARTIN GILL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v NICK HEATH
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
12 November 2018
I have read the judgment of Estcourt J in draft form. I agree that each of these appeals should be allowed, that orders should be made so that the rates notices to which they relate are amended, in each case by deleting the requirement to pay any general rate, and that orders should be made for any monies paid by way of general rates to be refunded. I agree entirely with the reasons of Estcourt J.
File Nos: 818/2018, 819/2018, 820/2018, 826/2018, 827/ 2018
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v ANDREW PAUL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v MARTIN GILL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v NICK HEATH
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
12 November 2018
The appeals
These five appeals to a single judge of this Court against a decision of the Administrative Appeals Division of the Magistrates Court of Tasmania have been referred to a Full Court of this Court.
The single decision below, cited as Southern Cross Care (Tasmania) Incorporated v Martin Gill – General Manager Meander Valley Council and Ors [2017] TASAAD [sic], embraced five separate applications to review before Magistrate Marron sitting in the Administrative Appeals Division.
On 23 February 2018 the magistrate held that, while certain lands identified in rates notices issued to the appellant by each of the four respondents, where they had erected upon them independent living units occupied by aged persons, were owned by the appellant exclusively for charitable purposes, such land was not both owned and occupied exclusively for charitable purposes.
The magistrate construed s 87(1)(d) of the Local Government Act 1993 (the Act) as requiring that the land be both owned and occupied for charitable purposes in order to be exempt from certain rates levied by the respondents under the Act.
The appellant has appealed the magistrate's decision in each of the five cases to which it had application. The three grounds of appeal are as follow:
"The Magistrate erred in:
1construing the requirement in section 87(1)(d) of the Local Government Act 1993 (Tas) (Act) that land be 'occupied exclusively for charitable purposes' as requiring consideration of the purposes of the occupier (Reasons, [58]) whereas the Magistrate should have construed section 87(1)(d) as:
(a) requiring consideration of the purpose of the occupation, as distinct from the purposes of the occupier themselves; and
(b) in any event, permitting purposes incidental to the fulfilment of the charitable purposes;
2in the alternative to Ground 1, construing the requirement in section 87(1)(d) of the Act that land be 'occupied exclusively for charitable purposes' as excluding regard of the Appellant's charitable purpose in relation to the occupation (Reasons, [58] and [59]), whereas the Magistrate should have construed section 87(1)(d) as requiring consideration only of the Appellant's charitable purpose in relation to the occupation, or:
(a)requiring consideration of the Appellant's charitable purpose in relation to the occupation; and
(b)permitting purposes incidental to the fulfilment of the charitable purposes; and
3construing the residents' agreements pursuant to which residents occupy the relevant land as a lease (Reasons, [53]) rather than a licence."
The Act
Section 87 of the Act provides as follows:
"87 Exemption from rates
(1)All land is rateable except that the following are exempt from general and separate rates, averaged area rates, and any rate collected under section 88 or 97:
(a) land owned and occupied exclusively by the Commonwealth;
(b)land held or owned by the Crown that is not land to which a relevant right to occupation relates and that is land that –
(i) is a national park, within the meaning of the Nature Conservation Act 2002; or
(ii) is a conservation area, within the meaning of the Nature Conservation Act 2002; or
(iii) is a nature recreation area, within the meaning of the Nature Conservation Act 2002; or
(iv) is a nature reserve, within the meaning of the Nature Conservation Act 2002; or
(v) is a regional reserve, within the meaning of the Nature Conservation Act 2002; or
(vi) is a State reserve, within the meaning of the Nature Conservation Act 2002; or
(vii) is a game reserve, within the meaning of the Nature Conservation Act 2002; or
(viii) ...
(ix) is a public reserve, within the meaning of the Crown Lands Act 1976; or
(x) is a public park used for recreational purposes and for which free public access is normally provided; or
(xi) is a road, within the meaning of the Roads and Jetties Act 1935; or
(xii) is a way, within the meaning of the Local Government (Highways) Act 1982; or
(xiii) is a marine facility, within the meaning of the Marine and Safety Authority Act 1997; or
(xiv) supports a running line and siding within the meaning of the Rail Safety National Law (Tasmania) Act 2012;
(ba) land, held or owned by the Crown, that is a seabed –
(i) on land to which relates a lease granted and in force under Part 4 of the Marine Farming Planning Act 1995; or
(ii) on land, if no lease (other than a lease referred to in subparagraph (i)), or licence, has been granted by the Crown in relation to the land and is in force; or
(c)land owned by the Hydro-Electric Corporation or land owned by a subsidiary, within the meaning of the Government Business Enterprises Act 1995 , of the Hydro-Electric Corporation on which assets or operations relating to electricity infrastructure, within the meaning of the Hydro-Electric Corporation Act 1995 , other than wind-power developments, are located;
(d)land or part of land owned and occupied exclusively for charitable purposes;
(da)Aboriginal land, within the meaning of the Aboriginal Lands Act 1995, which is used principally for Aboriginal cultural purposes;
(e) land or part of land owned and occupied exclusively by a council.
(2)The owner of any land referred to in subsection (1) may agree to pay general or separate rates or an averaged area rate.
(3)Land occupied by a joint authority or single authority to which Part 3A applies is not exempt from rates or averaged area rates."
The factual background
The parties in the proceedings below filed an agreed statement of facts. It is not necessary to set them out. It suffices to say that no fact relevant to the construction of s 87(1)(d) of the Act is in issue on the present appeals.
In the proceedings below the respondents took no issue with the appellant's claim to be a charitable institution, and the magistrate so found.
It was also conceded below by the respondent that the ownership of the subject land was for charitable purposes, and the magistrate found that the ownership of the independent living units "was for the exclusively charitable purpose of providing appropriate housing for the aged".
The appeal point
While the notices of appeal assert that the magistrate erred in construing the residents' agreements (samples of which formed part of the agreed facts), as leases rather than licences, the real issue for determination here, in my view, is whether it is correct to say that the subject land is both owned and occupied by the appellant exclusively for charitable purposes at all times, notwithstanding that the appellant parts with possession of the independent living units on the land to an aged person or persons each time a unit becomes vacant.
The magistrate found that a resident who enters into an agreement with the appellant in relation to one of the independent living units is the occupant. The respondent submits that the appellant does not contend that there was no evidence to support this finding, or that the magistrate made a wrong finding of jurisdictional fact, and that therefore it is necessary for the appellant to demonstrate that the magistrate misdirected himself as to the law and thereby wrongly answered the central question of fact.
The magistrate's reasoning
The magistrate took the view that a resident of one of the independent living units did not occupy that unit for the appellant's charitable purpose but rather used it as a home, which was the resident's purpose. His Honour reasoned that the appellant's charitable purpose was to provide aged care accommodation, and that "the critical point" was, he said, that such particular purpose was "fulfilled" once a particular unit was occupied and the purpose was thus "perfected" with respect to that unit until it became vacant again.
From this reasoning the magistrate concluded that while the subject land was owned by the appellant exclusively for charitable purposes, it was not also so occupied and that such ownership and occupation were both required for the exemption under s 87(1)(d) to operate in the appellant's favour.
The parties' contentions
The respondent argues that the scheme of the Act requires the occupier to be distinguished from the owner. That of course is clear from a reading of s 87 of the Act set out above.
The respondent contends that s 87 requires the determination of who the occupier of each and every relevant parcel of land is and then the determination of whether each occupation is exclusively for charitable purposes. If the occupier is not the applicant, the argument runs, then the exemption is not engaged, as occupation by an individual as a place of residence is not an exclusively charitable purpose.
The appellant argues in essence that the syntax of s 87(d) does not require that the question of the purpose of the use of the units by their aged residents must be addressed. The argument runs that the question posed by the provision "is the unit occupied exclusively for charitable purposes?" does not ask whether the unit itself is occupied by a person with a charitable intention.
Rather, the gravamen of the appellant's submission is that an elderly person living in a home provided to him or her by a charity is not incidentally, but essentially and directly, carrying out a charitable purpose, and that makes the occupation exclusively for charitable purposes within the meaning of s 87(1)(d).
Discussion
In Roman Catholic Church Trust Corporation of the Archdiocese of Hobart v Meander Valley Council [2012] TASMC 34, Magistrate Pearce (as he then was) in considering s 87(1)(d) in a different context to that before this Court, observed at [24]-[25] of his reasons:
"24 The issue for determination in each case is whether the land is 'owned and occupied exclusively for charitable purposes'. There is no requirement that for the exemption to apply that ownership and occupancy must be by the same person or entity. However the land must be both owned and occupied exclusively for a charitable purpose. One without the other will not suffice.
25 Care is to be taken to distinguish the terms of the Tasmania legislation from legislation in other jurisdictions. Authorities from elsewhere frequently involve consideration of 'use', not 'occupation'. See for example Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159 and Shire of Derby/West Kimberley v Yungngora Association Inc [2007] WASCA 233. Given the terms of the Tasmanian legislation it is unnecessary for me to decide who is 'using' the land and for what purpose; contrast Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 23 ALR 41 in which the High Court considered the phrase 'used or occupied solely for the purposes of the University'. Different considerations apply to the concepts of 'use' on the one hand and 'occupation' on the other. The terms are not synonymous; see Ryde Municipal Council per Gibbs ACJ at p 637. However, with the need for caution in mind, some guidance can however be gained by consideration of the authorities."
I note the distinction that his Honour drew attention to, and it does make cases such as City of Mandurah v Australian Flying Corps [2016] WASCA 185 distinguishable, given that s 87 of the Act is concerned with ownership and occupation of land as opposed to land use. To my mind, however, most of the many authorities cited in argument are unhelpful and none are dispositive of the present appeals. They each turn on their own facts and no unifying principle can be found from them. The possible exception to that statement is West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 where the unelaborated declamation of Lavan SPJ on behalf of the Court, on not materially different legislation as concerns the notion of occupation of land for exclusively charitable purposes, which appears in the final two paragraphs on p 72 of the judgment, accords, as will be seen, with my own view of the quality and nature of the occupation in the present case.
The question of construction involved here must focus on the text of the subsection but taken in the context of the section and bearing in mind its obvious object and purpose (see Talacko v Bennett [2017] HCA 15, 343 ALR 242 per Nettle J at [82]-[84], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [4] and [47]; Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378 at [23]-[32], [68]-[70] and [88]-[89] and see also Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]).
I take that approach in the present case where I regard the purpose of s 87(d) to be the provision of rate relief to charitable institutions in carrying out their work and I regard the text of the subsection as equivocal. In taking this approach I am mindful of the warning repeated in the plurality judgment in Deal v Father Pius Kodakkathanath [2016] HCA 31, 258 CLR 281 at [37]. There the joint reasons of French CJ, Kiefel, Bell, and Nettle JJ reiterated that it would be an error to approach the task of statutory construction by reference to what a judge may regard as desirable policy, imputing that to the legislature and then characterising that as the purpose of the legislation.
"The evening arrived; the boys took their places. The master, in his cook's uniform, stationed himself at the copper; his pauper assistants ranged themselves behind him; the gruel was served out; and a long grace was said over the short commons. The gruel disappeared; the boys whispered each other, and winked at Oliver, while his next neighbours nudged him. Child as he was, he was desperate with hunger, and reckless with misery. He rose from the table; and advancing to the master, basin and spoon in hand, said: somewhat alarmed at his own temerity: 'Please, sir, I want some more'."
In my view, it cannot be said that because Charles Dickens' young Oliver Twist was appeasing his own hunger by eating the workhouse gruel, he was not at the same time essentially and directly carrying out the charitable purpose of the unnamed parish in feeding the poor. Indeed, he was putting into effect that charitable purpose thereby allowing its accomplishment.
I accept the appellant's submission that an elderly person living in a home provided to them by a charity is not incidentally, but essentially directly carrying out a charitable purpose, and that makes the character, quality and nature of the occupation exclusively for charitable purposes within the meaning of s 87(1)(d) of the Act. While there is no issue here of the appellant's status as a charitable institution, I nonetheless note in passing that relief of the aged has been central to the concept of charity since the Statute of Charitable Uses 1601 (43 Eliz I, c 4). It would, to my mind, be distinctly odd to assert that a charity caring for the aged could build accommodation for elderly residents on land that it owned and which attracted rate relief, but yet must lose that exemption the moment it housed the objects of its charity in the built fabric. Quite obviously charitable accommodation must be lived in by someone other than the charity provider.
The respondent's approach to the construction of the subsection, focussing as it does on the aged residents' usage and enjoyment of the unit as a home merely begs the question of the character, quality and nature of that residents' occupation of the unit made available by a charity owning the land for exclusively charitable purposes, and making the buildings available to such residents in pursuit of such purposes.
Adopting that approach led the learned magistrate into what I regard as obvious error. His Honour's "critical point" that the charitable purpose was "fulfilled" once a particular unit was occupied and the purpose was thus "perfected" with respect to that unit, only to be revived when it again became vacant, is not only practically unworkable, it is legally unsound. It could not have been the legislative intent behind s 87(1)(d) of the Act. In my view his Honour misdirected himself as to the law and thereby wrongly answered the central question of fact.
Disposition
I would uphold grounds 1 and 2 of each notice of appeal. I do not need to consider ground 3 as the legal classification of the right to occupy the units is not in my view determinative of the relevant question of construction. The appeals should be allowed in my view.
The orders of the Magistrates Court (Administrative Appeals Division) should be set aside. The decisions of the respondents should be set aside and this Court should order that the rates notices to which the appeal relates be amended by deleting the requirement to pay any general rate. It should be further ordered that the respondents cause to be repaid to the appellant all monies paid by the appellant in the form of general rates pursuant to those rates notices.
Serial No 9/2018
File Nos: 818/2018, 819/2018, 820/2018, 826/2018, 827/ 2018
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v ANDREW PAUL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v MARTIN GILL
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v GARY ARNOLD
SOUTHERN CROSS CARE (TASMANIA) INCORPORATED v NICK HEATH
REASONS FOR JUDGMENT FULL COURT
GEASON J
12 November 2018
The grounds of appeal are in the judgment of Estcourt J.
The appellant is a charitable institution. It operates retirement villages on land it owns in Tasmania. Those villages are comprised of independent living units and apartments located within the municipalities represented by the respondents.
The provision of housing for the aged falls within a recognised category of charitable purpose. It has been so recognised since the Elizabethan Statute of Charitable Uses 1601 (43 Eliz 1 C 4).
Purposes incidental to the charitable purpose do not derogate from that character. They are to be regarded as ancillary to the charitable purpose: Stratton v Simpson (1970) 125 CLR 138 at 159–160; Congregational Union of New South Wales v Thistlethwayte (1952) 87 CLR 375, at 442 and 450. Accordingly, any such activities engaged in by the appellant can be ignored.
The appellant claims entitlement to the benefit of an exemption from "general and separate rates, averaged area rates, and any rate collected under ss 88 and 97 of that Act" pursuant to s 87(1)(d) of the Local Government Act 1993. That section provides an exemption for "land or part of land owned and occupied exclusively for charitable purposes".
The respondents determined that upon occupation of the independent living unit by a resident, occupation was no longer "exclusively for charitable purposes" and refused the appellant an exemption.
For the purposes of the appeal, representative agreements governing the terms of occupation by the residents were in evidence. The agreements were described by the appellants as licences. The respondents contended they look more like leases. It does not matter; ownership remains with the appellant with particular rights of occupation conferred on the residents.
The single issue is whether that occupation is exclusively for the charitable purpose of the appellant. Or, expressed in the way the respondents would have it, whether that occupation interrupts the charitable purpose, breaking the nexus between ownership, occupation and purpose that is a condition of the relief.
The authorities to which the Court has been referred turn on their own facts and particular statutory provisions. None of these is identical to s 87. Some general propositions can be gleaned from them, but this appeal is an exercise in the interpretation of this Act applied to the agreed facts.
The objective of statutory interpretation is to expose parliament's purpose as expressed in the language of the legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]. That legislative intention is to be ascertained from the language of the statute viewed as a whole: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56, 248 CLR 378. The task begins and ends with an examination of the text of the legislation; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 [39].
The purpose of s 87 is to provide financial relief from rates when land is owned and occupied for one of the prescribed reasons or on one of the stated bases. Section 87(1)(d) confers that benefit on charities in recognition of the public benefit which accrues from the charitable work undertaken.
This is a not a complicated prerequisite to comprehend but in its application confusion has arisen because a right of occupation has been conferred upon the residents under terms of written agreements. The learned magistrate concluded that the appellant's charitable purpose ceases upon a resident going into occupation; that the resident's occupation extinguishes a claim that the occupation is exclusively for a charitable purpose. He expressed his view in terms of the charitable purpose being perfected at that point.
This involved a finding that coincidence of ownership and occupation by the same entity- the charitable entity, was necessary to sustain the conclusion that "occupation was exclusively for charitable purposes". It was in this respect that the learned magistrate erred.
I am content to approach the matter on the basis that the right of occupation passes to a resident at the time the lease or licence is executed, and that a resident becomes the occupier upon moving in.
Section 87(1)(d) is silent as to the identity of the owner or occupier, focussed on the purpose of ownership and occupation. I accept the appellant's submission that that part is to be contrasted with other exemptions set out in s 87(1). For example, s 87(1)(a) refers to "land owned and occupied exclusively by the Commonwealth" and s 87(1)(e), which refers to "land or part of land owned and occupied exclusively by a council".
The residential occupation which occurs gives effect to the charitable purpose for which the units are provided; it implements the appellant's purpose. It does not strain the language of s 87(1)(d) to say it occurs for that purpose. "For" in s87(1)(d) means simply "on account of". So expressed the requirement is satisfied if the occupation is exclusively on account of the owner's charitable purpose, whether or not the owner is in occupation. That it is.
If I offer public transport, my purpose is not cut short upon passengers boarding my bus. That purpose endures, irrespective of the personal need which explains a passenger's choice to take up a seat. The occupation of my bus is for the public transport purpose I carry on. The same applies here.
The interpretation adopted below defeats the right to a rates remission precisely when the charitable purpose is being carried out; precisely when it may be said that there is an occupation for a charitable purpose.
Conclusion
The learned magistrate erred when he determined that the occupation of the appellant's independent living units by its residents supplanted the appellant's charitable purpose such that occupation was not exclusively for that purpose. The appellants are entitled to the benefit of a rates remission under s 87(1)(d) of the Act.
I join in the order allowing the appeal.
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