Council of the Town of Southport v Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [1935] HCA 53

296 HIGH COURT

H.C. or A. since it was not imposed by law, if deceased were an invitee, license Ha or trespasser, it follows that the attack on the summing-up in th

Jury action fails, and that the appeal should be dismissed. Comns-

SIONER FOR Appeal dismissed with costs. Ratiways

(N.S.W,).

Solicitors for the appellant, C. Jollie Smith & Co. Solicitor for the respondent, F'. W. Bretnall, Solicitor for Transpo

[HIGH COURT OF AUSTRALIA.] THE COUNCIL OF THE TOWN OF SOUTHPORT Appr: AND

THE CORPORATION OF THE TRUSTEES OF THE ORDER OF THE SISTERS OF) Responp MERCY IN QUEENSLAND F 5 |

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

H.C. or A, Local Government—Rates—Exemption—Exclusive user for a public schoo

1935. and school—Land vested in corporation under or in pursuance of any sta Ww the purpose of public charities—Local Authorities Act 1902-1932 (Q.) (2 BRISBANE, VII. No. 1923 Geo. V. No. 27), sec. 216 (iii.), (vi.}—Religious Education

July 5) 8,8, and Charitable Institutions Act 1861 (Q.) (25 Vict. No. 19), sec. 1.

eee The Corporation of the Order of the Sisters of Mercy was the re and MeTieman proprietor under the Real Property Act 1861 (Q.) of certain land held in : for the purposes of the Order. On the land there were two buildings conn by a covered way, one building being fitted as a schoolroom, the other ¢

taining classrooms, dining room, dormitory, chapel and cells or bedroomsfo nuns of the Order. On these premises a day and boarding school was co

by the nuns. Twelve Sisters of the Order resided on the premises,

R.] OF AUSTRALIA. 297

engaged mainly in teaching. The objects of the order were the spiritual H. C. _ perfection of the nuns, the education of poor girls, the visitation of the sick 1935. and the protection of poor women of good character. The Council of the Ro uxt

'Town of Southport rated this land under the Local Authorities Acts (Q.). Sovrnrort CorroraTion

Held that the land was not used exclusively for a public school within the v

meaning of par. vi. of sec. 216 of the Local Authorities Act 1902-1932, a

asthe premises were used both asa convent and a school, and the conventual Trust

life of the nuns was not a mere incident of the school. OF THE Onper oF

Held, further, that the land vested in the corporation by means of a memor- THE SISTERS 'andum of transfer and registration under the Real Property Act 1861, and come vs was not vested under or in pursuance to any statute within the meaning of © par. iii, of sec. 216 of the Local Authorities Act and was not exempt from

rating.

Decision of the Supreme Court of Queensland (Full Court): Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland v. Council of the Town of Southport, (1935) Q.8.R. 95, reversed.

Apprat from the Supreme Court of Queensland. - Certain Jands at Southport were vested under the Real Property

of Mercy in Queensland. On these lands there was a convent schoo] conducted by the nuns of the Order. The Southport Council rated the lands, and the corporation commenced an in the Supreme Court of Queensland claiming that the land not ratable, being exempt from rates under sec. 216 of the Local s Act 1902-1932 (Q.). The action was heard by Hart A.J., decided that the land was not ratable. From this decision the 'il appealed to the Full Court. The Full Court decided that he lands were not ratable: Corporation of the Trustees of the Order f the Sisters of Mercy in Queensland v. Council of the Town of (I).

om that decision the council, pursuant to special leave, appealed e High Court on the grounds :—

) That certain of the findings of the judgment of Hart A.J. and udgment of the Full Court were contrary to law.

) That upon the evidence the appeal should have been allowed d that the judgment of the action should have been directed by Court to be entered for the appellant.

er facts appear in the judgments hereunder.

(1) (1935) QS.R. 95.

298 HIGH COURT [193.

A. D. Graham (with him M. D. Graham), for the appellant. Of the several grounds taken in the Court of first instance two only

Sovrnrorr remain for the decision of this Court—the first, whether the lands

Corporation : 3 - a are used exclusively for a public school under par. vi. of sec.

Conronation 916 of the Local Authorities Act 1902-1932, the other whether the

OF THE

a amy land is vested in the respondents under or in pursuance of any statute OF THE

Orver or for the purposes of public charities, within the meaning of par. on Menor rv iii. of that section. On the first question : there was not any exclusive

QUEENSLAND.

user as a school, because the premises are also used for (a) a convent, (b) a residence, (c) a place of private worship, (d) a sanatorium or — rest home, and (e) as subserving private interests. The words employed, "exclusively used," are stronger than were deemed necessary in earlier cases to signify a sole user (Mayor &c. of Essenden — v. Blackwood (1); Queensland National Association v. Booroodabin Divisional Board (2)), and indicate the necessity for a complete — exclusiveness of the user relied upon. The Courts have been always — astute to discover extraneous users defeating an exempted user — (Hadfield v. Mayor ce. of Liverpool (3); Shaw v. Halifax Corpora- tion (4); Nunawading Shire v. Adult Deaf and Dumb Society of Victoria (5) ), and most particularly so when the extraneous user was by residence (President, Councillors and Ratepayers of the Shire — of Ferntree Gully v. Johnston (6); Kelly v. Municipal Council of Sydney (7) ; Municipality of North Sydney v. Goddard (8) ; Ex parte Taylor (9); Duhig v. City of South Brisbane (10); Showers v. Assessment Committee of Chelmsford Union (11) ). The building was the scene of the spiritual life of the religious community, and was _ governed solely by the Rule of the Order of the Sisters of Mercy. — The user of the building by the Sisters as nuns was a duty enforced by their vocation and should not be treated as negligible, notwith- standing the judgment of the majority of the Full Court of New Zealand in Peters v. Mayor &e. of Cambridge (12), which judgment is directly opposed to the judgment of Chubb J. in Duhig v. City of

South Brisbane (10). The undisputed evidence establishes also a (1) (1877) 2 App. (7) (1920) 28 C.L.

(2) (1892) 4 Q, : (8) (1909) 9S. (3) (18 .

(4) (1915) 2 . 170. (9) (1868) 7 (5) (192 .R. 98. (10) (1921) Q:

(6) (1909) V.L.R. 113; 30 A.L.7. 19 2) (eo 1 QB. 339.

e) OF AUSTRALIA. 299

e, and that the nuns enjoyed a particular benefit from their a.

the lands in the opportunities afforded to them for the proper Sovrurorr erformance of their spiritual duties and in the provision for each : omg acc hem under the Rule of the Order of a life-long home. The land "°®"84t!08

OF THE

, subserves their private purposes and therefore could not be T8v: soy oF

'exclusively as a school (President, Councillors and Ratepayers of Oxvrn or

Shire of Ferntree Gully v. Johnston (1) ). Moreover, the number oy .

{resident nuns was wholly in excess of the number of resident °'®®

ers required for the school as a boarding school.

'The school is not a public school. It lacks most of the

teristics referred to by Fry L.J. in Blake v. Mayor &c. of

of London (2), having neither a perpetual foundation nor gement by a public body, and is a school conducted by private

for nuns are essentially private persons—for profit. (Cf.

v. Commissioner of Stamps ; Dilworth v. Commissioner for

and Income Tax (3).) 'The question of actual gain is not an

ial part of the use of the land for profit (R. v. Sterry (4); R. v.

R. v. Inhabitants of St. Giles, York (6); Brighton College Marriott (7) ). The character of a school as private or public

lepends upon the true object of the school (Girls' Public Day School

v. Breaut (8), per Lord Macmillan). The only avowed object

ondent's school is to be found in its prospectus, which clearly

cates it to be a private boarding school, commercial school, and

school intended to be carried on for gain. The inspection of

'school by Government inspectors is purely voluntary, and the

expressly denied the existence of any State right of control,

'no institution can fairly claim to be a public institution unless

subject to some form of public control (Meaney v. Waratah

lunicipal Council (9)). [Counsel also referred to Cardinal

wghan Memorial School Trustees v. Ryall (10) and Birkenhead

ehool Ltd. v. Dring (11).] On the question of vesting, respondent's

"LR. 113; 30 A.L.T. 194. (6) (882) 8B. & Ad. 578; 110 ER. .B.D. 79, at p. 82. 1899) A.C. 99, at p. 108 (7) (1926) A.c. 192, at

1840) 12 A. & E. 84, at p. 90; (8) (1931) AC. 13 E.R. 743, at p. 745. (9) (1923) 40 W ay

ie) 14 East 2: 104 E.R. (10) ( 7 Tax Ca ' (11) (1926) 11 Tax C:

H.C. or A.

1935. Ww Soururor? Corporation v Corroratton or THE 'TRUSTEES OF THE ORDER oF THE SISTERS

x Within the purview of the section would be where the actual ti "to the land is created by the statute, or possibly by an Order

HIGH COURT [193

claim is that the land is vested in it under the Religious Educatic and Charitable Institutions Act 1861, and also under the j Property Acts 1861 and 1877. The first-mentioned Act is purel an enabling Act, while the Real Property Acts are conveyancing statutes only. None of the Acts mentioned could or has conf any title whatsoever upon the respondent—vesting being done its case by assurance only. The only case which would com .

Council made thereunder, and where the land, the donor and purpose of the trust are all designated by such Act or Order in Council. In the present case no trusts appear on the face of the certificates of title for the land.

Macrossan (with him Macgroarty), for the respondent. The school admittedly carried on by the respondent is a public schoo It is open to all the public, with no restrictions as to religious belief, and affords a free education to a large number of the public. It is subject to inspection by Government inspectors, and is recognized as a school suitable for the training experience of pupil teachers seeking admission to the public service. It is not carried on for private profit, and the body conducting the school has obtained the recognition of the State by its registration under the Religious Educational and Charitable Institutions Act 1861. No particular characteristics can be claimed to be an essential of the existence of a public school (Girls' Public Day School Trust v. Ereaut (1) ), and the present case is indistinguishable from Duhig v. City of South Brisbane (2) and Cardinal Vaughan Memorial School Trustees v. R (3). The school also fulfils the conditions prescribed by Lopes L.J. Blake vy. Mayor ce. of City of London (4), in that a sufficiently number of the public receive education there, either gratuitously to a great extent gratuitously. The trusts upon which the scho property is held need not appear upon the title, but may be estal lished aliunde (Roman Catholic Archbishop of Perth v. Perth Board (5) ). The school as now conducted would come within

(1) (1931) A.C. 12. (3) (1920) 7 Tax Cas. 611.

(2) (1921) QS-R. 133. (4) (1887) 19 Q.B.D. 79. (5) (1933) 49 C.L.R. 37, at p. 43.

OF AUSTRALIA. 301

mn of a public institution (Royal Masonic Institution for Boys H.-C. oF A. )) v. Parkes (1)). As to exclusive user, here the predominant heer;

was for a school. The evidence shows that the building was Sovraronr ilt for a school, and the presence of the nuns is only an incidental e mes wae of the carrying out of the work of the school. Intentions of ©" onarios

OF THE

4 TRUSTEES ppersons using the land are irrelevant, user alone being the pce

ing factor under the sub-section relied upon. The question Onper or 'the Court's consideration is the secular occupations of the persons cc ena ying the land, and the religious life of the Sisters does not affect °°" position (Peters v. Mayor dc. of Cambridge (2) ). An incidental or dinate user will not defeat an exemption granted to a dominant unctional user (Roman Catholic Archbishop of Sydney v. Metro-

Water, Sewerage and Drainage Board (3), per Higgins J.).

e(4); Mayor dc. of Christchurch v. Boland (5); Franklin County Wesley Training College Board (6); O'Farrell v. Council of the icipality of Bathurst (7) ; Leicester County Council v. Assessment of Parish of Leicester (8); Whatmore v. Council of the y ity of St. Peters (9); Municipal Council of Sydney v. rince Alfred Hospital (10).] As to the vesting of the land under ec. 216 (iii.), the land is presently vested in the respondent, ice., by it under the provisions of the Real Property Acts (see per J. in Brisbane City Council v. Sir Alfred Cowley (11) ), and sec. 1 of the Religious Educational and Charitable Institutions 1861, is held for the use and purposes of the respondent institu- as defined by the Rule of the Order. Those purposes are public ble purposes (Cocks v. Manners (12) ; In re Delaney ; Conoley v. (13) ). With respect to the alleged user as a sanatorium, the user was for Christmas holidays only, and the land would under that , ifratable at all, only be ratable for the period of such holidays. ser of the premises is severable both as to the time of occupation e respective parts of the land occupied for separate purposes. (7) (1923) 40 W. (8) (1898) 78 L. (9) (1926) 43 W. (10) (1934) 51 W.N. (11) (1919) Q De

(12) (1871) L.R. (13) (1902) 2 Ch. 642.

302 HIGH COURT [198

H.C. or A. Here the dominant feature of the user, both as to time and p

1935. was the user as a public school.

Sovrurorr CoRPORATION

A. D. Graham, in reply. The dominant user was as a convent. rin. Whole premises owe their origin to the existence of the rel

panes body, and the school is the outward expression of the performane ee or of the duties created by the Rule of that body, under which Rule on Mercy 1x the whole institution is at all times governed. In Brisbane

indeed good law, from the present case. In both Duhig v. City of South Brisbane (2) and Royal Masonic Institution for Boys (Ti v. Parkes (3) strong reliance was placed on the fact that a Gove ment grant was being made to the school and institution, a factor which is wanting in the present case. 4

July U1. The following written judgments were delivered :—

Ricu anp Drxon JJ. In this appeal the question is whethe certain premises in the town of Southport occupied by the Order of the Sisters of Mercy are exempt from rating. Two exemptions ar

erected, and a tennis court and other places of exercise have bi made. There are two buildings connected by a covered way. smaller of these is fitted as a school room or rooms and is a one stor building. It is used as an infants' school. The larger buil consists of two storeys. The ground floor contains a class ro and a dining room for the use of pupils, and music rooms. It al contains a chapel, sacristy, a refectory, a parlour and a kitchen. T upper storey contains a dormitory for pupils and some cells or b rooms, and a community room for the use of nuns. Upon

(1) (1919) QS.R., at p. 95. (2) (1921) Q.S.R. 133. (3) (1912) 3 K.B, 212. 7

.R.J OF AUSTRALIA.

r Mercy. It consists of an infants' school and a primary school

whom some sixteen to twenty are boarders. A large percentage the day scholars are received without fee, and the fees charged to

The school is called 'Star of the Sea Convent School Southport." "The Order of the Sisters of Mercy is a religious society or egation of the Roman Catholic Faith. They are governed the rules of their Order. The vows of the Order include a vow werty and a vow of obedience. The Sisters of the Order are ined, besides attending particularly to their own perfection, ich is the principal end of all religious institutes, also to have in view what is the peculiar characteristic of the congregation, which the most assiduous application to the education of poor girls, the visitation of the sick, and the protection of poor women of good character. The rules of the Order elaborately set out the duties of the members and impose upon them the performance of religious which explains the mode in which the upper floor of the build- 'how in question is appointed. Members of the Order live in a unity and according to Rule. Of the three subsidiary purposes of the Order, viz., the education poor girls, visitation of the sick and the protection of poor women, and the first, the education of poor girls, has assumed the prominence. In practice at Southport the Sisters of Merey not neglect the visitation of the sick where occasion calls for it, 'it is not permitted to interfere with their chief work, that of a Throughout the school year each of the twelve Sisters narily residing upon the premises takes some part in the conduct e school and the teaching or care of the pupils. But it is evident according to the usual practice in ordinary schools, so many twelve would not be necessary to conduct such an establishment it were a secular school. During the school holidays Sisters, who at other convents or convent schools, are sent to reside in

remises a school has for many years been conducted by the Sisters H- ©. or A.

1935. ees

or girls. It is attended by about one hundred and fifty scholars Sovruronr

CORPORATION

v

Corroration

OF THE

e boarders are lower than would be necessary to defray the cost T#vsTE®S

OF THE

their education and board. Twelve Sisters including a Sister Onvex or rior of the Order reside in the larger building. Three maids are Py phakic?

employed at a wage. The Sisters of the Order carry on the teaching. °'"®*

Rich J. Dixon J.

H.C. or A. the community at Southport, which is a seaside resort. They a

1935. we

Sovruport CorPoRATION

v.

CorPoRATION

OF THE

TRUSTEES OF THE ORDER ©: THE SISTERS or Mercy

Queeysta

Rich J.

Dixon J.

* Sea Convent of Mercy. ¥

HIGH COURT [193%

sent for change and refreshment. The scholars attend a weekly service in the chapel, and those who are boarders use it also for prayer and meditation. In this way it forms an important part of school as well as serving the purposes of the Sisters of the Orde Occasionally strangers attend services at the chapel, probably by invitation. Both in the school prospectus and in letters from the Sister-in-Charge, the Institution is called a convent, the Star of the

Upon the terms of the exemption, two questions arise. Is the land used exclusively for a school ?. If so, is that school a public school? The considerations relied on to show that the school is a public school within the meaning of the exemption have not been included in the above statement, which is directed rather to the first question. The great difficulty of sustaining the claim to the exemp- tion lies in the requirement that the use of the premises for a school shall be exclusive. The Order of the Sisters of Mercy is active in teaching. It was because a school was considered necessary at Southport that the Order there established itself. Without a school, or the need of a school, there would have been no convent. But it is a religious order of a conventual character. Large as the school necessarily looms in the use of the land, the residence of the Sisters upon the land cannot be referred to the use of the land as a school without doing some violence to the true conception of their vocation. The communal and religious life which forms a necessary part of the life of the members of the Order cannot be conducted except at some defined place. The Sisters of the Order are not in the position of teachers who dwell at a school for the convenient discharge of — their duties as teachers. They dwell together because they have devoted their entire existence to the purposes of an Order, the members of which live in a community. The school is indistinguish- able from the convent and the convent from the school, because they form an entirety in the work and life of the Sisters. The number of the Sisters dwelling together, the appearance of other Sisters during the school holidays, the chapel, the sacristy, and the ce are all the consequence of the nature of the life of the Order. land supplies the place upon which the entire institution is conducted

.R.] OF AUSTRALIA. 305

it had not been for the unfortunately framed exemption, no one H.-C. oF A. d, we think, have regarded the institution as a school to the is

sion of a convent, nor, on the other side, would it have been Soursrorr ented as a convent divisible from the school. The land is °™°e*™°* ed for a single and indivisible institution, the dominant activity ar gd

of which is the conduct of a school: But the conclusion that the Tae

e of the land for a school is not exclusive cannot be avoided, Oxper or

xcept by regarding the conventual life of the nuns as a mere incident fg r

f the school. To so regard it appears to us plainly to be an error. VESS"ANP- For these reasons the claim to the exemption as land used exclu- Rich J,

ely for a school fails.

_ The second exemption relied upon under sec. 216 (iii.) is "land

ed in or for the time being placed under the management or

mtrol of any person or corporation under or in pursuance of any

tute for the purposes of public charities."

'The land has been vested in the respondent corporation by transfer.

respondent corporation was constituted by letters patent

ant to the Religious Educational and Charitable Institutions

ct 1861. By sec. 1 of that Act the persons erected into a corpora-

on are " capable to receive purchase acquire and possess to them d their successors so called or appointed to and for the uses and pur- s of the said corporation and of the religious or secular institution y which such person or persons and their successors shall be

lled or appointed in accordance with the rights laws rules or usages 'the community or institution to which" he or they "belong." It is

e plain answer is that the statute gives corporate existence and ity to receive and hold the land for such purposes, but does more. The land is not vested under or in pursuance of the e; it vests by assurance, that is by transfer and registration. The result is that the appeal must be allowed. The order of the Pull Court and the judgment of Hart A.J. must be discharged. In lieu thereof the action must be dismissed. _ The appeal was brought to this Court by special leave, and as permitted only upon terms. The order of the- Court granting

ial leave has not been correctly drawn up. 'The terms . 'You. um 20

306 HIGH COURT (1935.

H.C. or A. were that the costs of the appeal should abide the order of the

tes Court, not of the application for special leave. We would be | Sovrnrorr disposed to order that the appellant pay the costs of the appeal, CORPORATION Dut, in all the circumstances of the case, including the difficulty of

».

ome tan. the exemptions and the differences of opinion which they have

Trustees evoked, we think justice will be best served by ordering that the |

OnpEs or parties abide their own costs of the proceedings in this Court and

'THE SISTERS or Mercy ry the Supreme Court.

QueeNstanp.

McTiernan J. The claim for exemption which raises the more difficult question is that the subject land is used for a public school. But in order to sustain the claim for exemption upon that ground it must be established that the land is used exclusively for a public school. The land is occupied by a set of buildings containing all — the appointments of a convent and a girl's school. I cannot escape — from the conclusion that the use to which the land is put is not — solely that of a school, but is that of a convent which comprises a school. No doubt the school presents the appearance of dominating _ the use of the land, but the use of the land as a convent is not insignificant or inconsiderable, and fulfils part of the purposes of the Order which occupies the land. It must be remembered that — the exemption is rigid, requiring as it does that no other use should be made of the land than that of a public school. Everything which is done on the land must therefore arise in the course of carrying on a public school and be strictly incidental to that exact purpose. — To treat the convent as an incident in the organization of the school is to invert the order of ideas. It is not a mere teachers' residence attached to the school. It is not to the point to say that, but for — the need of the school, there would be no convent at Southport. Once the need of a school led to the Sisters of Mercy coming to Southport, the establishment of the school was necessarily accom- panied by the establishment of a convent. All this case is concerned with is the nature of the use of the land, and the dual use, in my opinion, makes it impossible to say that the land is not used for any purpose but that of a school. The existence of two active purposes is inconsistent with the exclusive use of the land for a

OF AUSTRALIA. 307

: school. This view which the Court is constrained to adopt H- ©: or A-

unnecessary to examine the difficult question of what pots

a public school within the meaning of sec. 216 of the Sovraronr CORPORATION

ities Act 1902-1934. -

that the claim for exemption founded on par. iii. of os r-venal

; also fails for the reasons contained in the joint judgment T#vSTES oF THE

and Dizon JJ. ORDER OF

ppeal should be allowed. I agree with the order as to costs, Feige oncom +h will be read by Rich J. Quznnstanp.

Appeal allowed. Judgment of Full Court set aside and judgment of Hart A.J. discharged and in lieu thereof action dismissed.

for the appellant, J. 7. B. Price, for K. B, Price, Southport. rs for the respondent, Bergin, Papi & Finn.

B.J.J.