Kelly v Municipal Council of Sydney [1920] HCA 52; (1920) 28 CLR 203 (27 August 1920)

HIGH COURT OF AUSTRALIA

Kelly and Others Defendants, Appellants; and The Municipal Council of Sydney Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

27 August 1920

Isaacs, Gavan Duffy and Rich JJ.

Flannery K.C. (with him Leonard), for the appellants.

Leverrier K.C. (with him Davidson), for the respondent.

The written judgment of the Court, which was delivered by Isaacs J., was as follows:—

Aug. 27

Isaacs, Gavan Duffy and Rich JJ.

The question for our decision is whether the presbytery is rateable by the City Council under sec. 110 of the Sydney Corporation Act 1902. The material parts of that section are as follow, which, as the result of our consideration, we arrange thus:—Sub-sec. 4: (1) Every building whether vested in or occupied by the Crown or not, and (2) all lands whether occupied or not, within the city, save as hereinafter mentioned, shall be deemed to be "rateable property." within the meaning of this Act. Sub-sec. 5: (1) No land vested in trustees for purposes of public recreation, health, or enjoyment, and (2) no (a) hospital, (b) benevolent asylum, or (c) other building used solely for charitable purposes; and (3) no building used solely for public worship, or (4) any school under the Public Instruction Act of 1880, shall be liable to be assessed or rated in respect of any rate under this Act. As to schools, of course, though the words "or any" are not the best form of expression, yet they mean "and no." Street C.J. in Eq. held that the presbytery is not exempted. This ruling is challenged on two grounds: (1) that the presbytery is a "building used solely for charitable purposes," within the meaning of sub-sec. 5; and (2) that the presbytery is an appurtenance of the Cathedral and, therefore, is within the expression "building used solely for public worship."

The first ground is rested on the principle that technical expressions in documents should receive their technical meaning, which is primarily their natural meaning, unless that is displaced by the rest of the instrument. The principle is said to be applicable on the authority of Pemsel's Case[1], where the word "charitable" was given its Elizabethan signification. In Swinburne v. Federal Commissioner of Taxation[2] that argument was considered by this Court in relation to another statute, and it was held that no rigid rule can be applied to the determination of the question, following the decision in Inland Revenue Commissioners v. Scott; In re Bootham Ward Strays, York[3]. Reading sec. 110 for this purpose, it appears to us very clear that the word "charitable" in sub-sec. 5 is not to be understood in the comprehensive sense which the appellants contend for. The phrase "other building used solely for charitable purposes" is placed in the same category as "hospital" and "benevolent asylum," and this naturally primâ facie limits "charitable," as in Swinburne v. Federal Commissioner of Taxation[4], to the sense of "affording relief to persons in necessitous or helpless circumstances, and in most instances, at all events if required, gratuitously." This is supported by the circumstance that it is the "use" of the building that determines its exemption or non-exemption, and independently of whether there is a trust or not. It is also supported by the circumstance that some trusts are expressly mentioned as to "land" which would be "charities" in the technical sense: indeed hospitals and benevolent asylums, and buildings used solely for public worship, and the schools mentioned, would all come under that comprehensive signification. We entertain no doubt that the first ground cannot be sustained.

As to the second ground, it does not appear that the presbytery can be properly described as an appurtenance of the Cathedral, so as to make the Cathedral, as the whole building within the meaning of the definition in sec. 3, include the presbytery. If it did so include the presbytery, there would, as was pointed out during the argument, be a serious danger of involving the Cathedral in rateability, because of the word "solely" in connection with "public worship." Mr. Flannery eventually did not press this point; and we are of opinion the presbytery is separate from the Cathedral, and, while the latter is free, the presbytery is not.

The judgment of Street C.J. in Eq. must, therefore, be affirmed.

The appeal will be dismissed, with the usual result that the appellants must pay the costs.

Appeal dismissed with costs.

Solicitor for the appellants, T. J. Purcell.

Solicitor for the respondent, T. W. K. Waldron.

[1] [1891] UKHL 1; (1891) A.C., 531.

[2] [1920] HCA 8; 27 C.L.R., 377.

[3] (1892) 2 Q.B., 152, at p. 165.

[4] 27 C.L.R., at p. 384.