Christ College Trust v City of Hobart [1928] HCA 1; (1928) 40 CLR 308 (15 February 1928)

Christ College Trust Appellant; and The Mayor, Aldermen and Citizens of the City of Hobart Respondent.

The decision in this case depends on the meaning to be given to the words "charitable purposes" in sec. 116 of the Hobart Corporation Act 1893 (57 Vict. No. 11), and to the same words in section 60 of the Hobart Water Act 1893 (57 Vict. No. 25). The general rule, as stated by Lord Wrenbury, speaking for the Judicial Committee in Chesterman's Case[1], is that the word "charitable" must be given its technical legal meaning unless a contrary intention appears in the statute. Accepting that rule I have come to the conclusion that in the case of both the statutes now in question a contrary intention does sufficiently appear. The words of the provision now under consideration are "any hospital, benevolent asylum, or other building used solely for charitable purposes" and sec. 116 includes other provisions exempting "any public library or public museum" and "any public school under the Education Act." I gather from these provisions, taken as a whole, that the words "charitable purposes" were used in their popular rather than in their technical legal sense. In the sentence in which they occur they relate to a building other than a hospital or benevolent asylum, but used, as they are, for charitable purposes, that is to say, for the relief of physical or mental suffering or pecuniary need. This view is confirmed by the inclusion in the section of the exemptions above referred to and the exemption relating to churches and by the fact that by an amending Act an exemption in favour of the University was inserted, which would be wholly unnecessary if "charitable" were used in its Elizabethan or technical sense. Further, in the Corporation Act the express exemption of certain schools tends to show that the intention of Parliament was to limit the exemption to those schools, and although this exemption is not repeated in the Water Act I can find no sound reason for attaching a different meaning to the word "charitable" in two statutes passed almost simultaneously and dealing with matters of the same kind.

The sole question finally left for our determination, after hearing the able argument of Mr. Butler, is whether (a) in sec. 116 of the Hobart Corporation Act 1893 (as amended by the Act 12 Geo. V. No. 24, sec. 18), (b) in sec. 60 of the Act 57 Vict. No. 25 as to the Hobart water supply, the words "charitable purposes" are to be given the technical sense of the Statute of Elizabeth, or are to be treated as having a more limited meaning.

If the technical sense be not accepted, the appellant Trust must fail in its appeal. I should have been doubtful, having regard to the meagre provisions of the declaration of trust of 1847 and to the curious financial provisions of the Christ College Act 1926, whether the Trust ought to be treated as a charity even within the Statute of Elizabeth, but the respondent concedes that it is. I shall assume everything in favour of the Trust except as to the meaning of "charitable purposes" in the sections in question.

I take my standing point—as Lord Wrenbury took his in expressing the opinion of the Judicial Committee in the recent case of Chesterman v. Federal Commissioner of Taxation[2]—in the words of Lord Macnaghten in Pemsel's Case[3]: "In construing Acts of Parliament it is a general rule ... that words must be taken in their legal sense unless a contrary intention appears." The legal sense of "charitable purpose" is, of course, the wide technical sense of the Statute of Elizabeth; but I have come to the conclusion that in both of these Acts the contrary intention does appear. I thought, in Chesterman's Case[4], with the Chief Justice, that the contrary intention did not appear, and that view was affirmed by the Judicial Committee. In this case, however, I see no alternative open to me, on an examination of all the cases of exemption from general rates in sec. 116, but to decide that the word "charitable" is used in a more restricted sense.

The words of sec. 116 are:—"The Municipal Council shall not levy or raise any rate whatever in respect of any of the properties hereinafter mentioned (that is to say):—Any lands or buildings the property of and occupied on behalf of Her Majesty: Any lands or buildings hired or used by the Government of Tasmania for any public purpose: Any hospital, benevolent asylum, or other building used solely for charitable purposes: Any public library or public museum: Any public school under the Education Act: Any church, chapel, or other building used solely for public worship."

In the present case, the claim for exemption is made for a school founded in 1847—a school which was started in connection with the Church of England, without any purpose of profit (as I assume in favour of the appellant). Such a school would probably prima facie come under words such as "building used solely for charitable purposes." But the Legislature has separately applied its mind to schools, and has confined its exemption as to schools to "any public" (State) "school under the Education Act." This school is not a State school, or in any way under the Education Act. What was the use of this limitation as to schools if the Legislature meant to include other schools by virtue of the words "building used solely for charitable purposes"? Moreover, there is one common characteristic of all the properties made exempt from rates by the section, and that is that they are for some public purpose; but the word "public" is not here actually used in relation to a hospital or benevolent asylum "or other building used ... for charitable purposes"—probably because in the Australian Colonies (now States) the "hospitals"—if the term be used simpliciter—and benevolent asylums are all public—used, not for gain, but for the benefit of the public. Incidentally, I do not think that a private hospital, or a private benevolent asylum (if there are any such asylums) is meant to be exempted—they would be usually for gain. There is, on the other hand, one common characteristic of hospitals and benevolent asylums, and that is that they are for persons suffering either in body or in pocket; and when we find such buildings exempted, and any "other buildings used solely for charitable purposes," the ejusdem generis rule is surely applicable so as to limit the "charitable purposes" to similar buildings, buildings for the relief of suffering. One cannot treat this school as an institution for the relief of suffering. It is not necessary for me to define exhaustively all the institutions, all the buildings, which are covered by this exemption, but it certainly does not cover schools for healthy boys. Here the exemption is claimed for playgrounds and grounds not used for buildings, although the Legislature is careful in this section to confine it to buildings—not to "lands or buildings" as in the preceding exemptions.

Another matter which weighs with me strongly against attributing to the Legislature the meaning of charity within the Statute of Elizabeth is that sec. 116 contains, in other of the express categories of exemption, purposes which would be charities within the Statute—e.g., "any public library or public museum: ..." "any church, chapel, or other building used solely for public worship." This is not a case of categories merely overlapping, as in Chesterman's Case[5]. One can hardly conceive of any public library that would not be a charity, in the educational aspect of charity. Finally, when the Legislature amends the Act in 1921 (12 Geo. V. No. 24, sec. 18) it inserts a new specific exemption—"any lands or buildings the property of, and occupied on behalf of, the University of Tasmania," although a University of this character would surely be a charity within the Statute of Elizabeth. Singly taken, these considerations may not be conclusive. I quite recognize the force of the view that founders may use words which are not mutually exhaustive in denotation, expressions which overlap, and that the principle as to ejusdem generis may easily be pushed too far. But all these circumstances combined show, to my mind, that the words "charitable purposes" are not used in the sense of the Statute of Elizabeth, or in any sense analogous thereto, and that the intention of the Legislature was to confine the exemption to narrower limits (I do not say to eleemosynary limits).

As for the Act 57 Vict. No. 25, that which relates to the Hobart water supply, the exemptions which are prescribed by sec. 60 are not the same as in the Act 57 Vict. No. 11; but they significantly include the precise exemption in question, that contained in the Act No. 25: "Any hospital, benevolent asylum, or other building used solely for charitable purposes." These two Acts became law on the same precise date—14th November 1893; and it is a fair presumption that the Legislature used in the same sense the same words relating to a similar subject affecting the same City of Hobart on the same day. If in the Act No. 11 it is not meant to exempt schools under these words as to "charitable purposes," neither was it meant to exempt schools under the words in Act No. 25.

[1] (1926) A.C., at p. 131; 37 C.L.R., at p. 319.

[2] (1926) A.C., at p. 131; 37 C.L.R., at p. 319.

[3] (1891) A.C., at p. 580.

[4] [1923] HCA 24; (1923) 32 C.L.R. 362.

[5] [1923] HCA 24; (1923) 32 C.L.R. 362.

High Court of Australia

Christ College Trust v City of Hobart [1928] HCA 1; (1928) 40 CLR 308 (15 February 1928)

HIGH COURT OF AUSTRALIA