Roman Catholic Archbishop of Sydney v Metropolitan Water Sewerage & Drainage Board [1928] HCA 6; (1928) 40 CLR 472 (16 April 1928)

HIGH COURT OF AUSTRALIA

The Roman Catholic Archbishop of Sydney Defendant, Appellant; and The Metropolitan Water, Sewerage, and Drainage Board Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

16 April 1928

Knox C.J., Isaacs, Higgins, Gavan Duffy, Powers and Starke JJ.

Feez K.C. (with him Power), for the appellant.

Maughan K.C. (with him Weston), for the respondent.

Feez K.C., in reply.

The following written judgments were delivered:—

April 16

Knox C.J.,

Gavan Duffy and Starke JJ.

This is an appeal from a decree of the Chief Judge in Equity declaring that the appellant is liable for the amount of rates levied by the respondent in respect of a parcel of land containing 43 acres or thereabouts which is admittedly occupied by and used directly in connection with a building known as St. Patrick's College. The College is used and occupied as a seminary for the education of young men students for the Roman Catholic priesthood. It is admitted that the College is a building used or occupied for religious teaching, the question at issue between the parties being whether it is "solely" used and occupied for that purpose. The facts relied on by the respondent as showing that the building is not "solely" used or occupied for religious teaching are that the rents reserved by certain leases granted under the powers conferred by the St. Patrick's College (Manly) Act 1914, are by such leases made payable half-yearly at the College, that such rents are in fact paid there, and that receipts for such rents are issued from the College. The rents are applicable to purposes which include the upkeep and maintenance of the College and of other buildings not connected with it or standing on the parcel of land the subject of the present contest.

The learned Chief Judge in Equity thought that on the admitted facts the College buildings were used as a sort of estate office at which rents payable to the appellant as trustee of the whole of the lands comprised in the First Schedule to the Act above referred to were to be paid, and that this fact removed the College buildings from the category of buildings occupied or used solely for the purpose of religious teaching. We are unable to agree in this view. We can find nothing in the admissions to justify the conclusion that the College buildings were used as a sort of estate office. The mere fact that rent was payable and paid at the College buildings does not, in our opinion, amount to a use or occupation of those buildings or any part of them for the purpose of an estate office, nor is it any more inconsistent with their use solely for religious teaching than the receipt of rent or other moneys by an individual at his private residence would be with its use solely as a private residence.

The facts stated with regard to the Corpus Christi procession do not show any use of the buildings for purposes other than religious teaching or, indeed, for any purpose at all.

In our opinion the appeal should be allowed.

Isaacs and Powers JJ.

The claim for exemption, so far as it rests on par. (d) of sub-sec. 1 of sec. 88 of the Act fails, in our opinion. The words "public charity" in that paragraph, read in connection with the context in that paragraph, and in sec. 93 (see Manchester Corporation v. McAdam[1]) are not used by the Legislature in the artificial sense which looks back to the days of Queen Elizabeth, but in the practical sense of to-day, that to which the people of New South Wales would naturally attach to the words. But the case, upon the agreed facts, does, as we think, and for the relevant period, fall within the exempting provisions of par. (h) of the same sub-section. The subject land is, upon the facts before us, occupied by and is used directly in connection with a building which is occupied solely for religious teaching. It is conceded that St. Patrick's College is occupied as a seminary for the education of young men students for the Roman Catholic priesthood. That is unquestionably and by concession an occupation "for religious teaching." But the terms of exemption include the word "solely." It is claimed by the respondent that by reason of one circumstance that condition does not exist. The circumstance is set out in par. 12 of the admissions in these words:—"Leases granted under the powers given by the Saint Patrick's College (Manly) Act 1914 of parts of St. Patrick's College Estate being the land described in the Second Schedule to the said Act provide that the rents thereby reserved are to be paid half-yearly at the said College and the rents so reserved are paid at the said College and receipts for such rents are issued from the said College. The said rents are applied for the purposes directed by the said Act."

To the actual application of the rents we attach no importance whatever (Purvis v. Traill[2]). But the learned Judge from whom this appeal comes thought that because the leases of the Second Schedule lands provide that the rents are to be paid half-yearly at the College, and the rents are in fact so paid and receipts are issued at the College, the building was not used or occupied solely for religious teaching. With deep respect we are not able to concur in that view. The leasing of the Second Schedule lands is expressly permitted by Parliament and plainly for the purpose of advancing the real purpose of the grant, namely, public worship and religious education. The receipt of the rents is in no way foreign to that real purpose (see per Parke B. in Purvis v. Traill[3]), and their receipt at the College or elsewhere is subsidiary to that purpose. The provision in the leases that the rents are to be paid at the College where the trustees may be found, if not at the episcopal residence, is little more than the common law would require if no such express provision were made, once there is an express promise to pay the rent (Haldane v. Johnson[4]). No special portion of the building was segregated or designated as an office or place for the purpose of payment. The substance of the matter, as far as it can be gathered from the facts stated, is not that the building as such was during the period in question used or occupied as a rent-receiving office, but that the personal obligation of the tenants to find their creditors was satisfied by finding them at their official home and then and there discharging the debt, possibly even by means of the postman. As to the Corpus Christi procession, it is sufficient to say it is irrelevant as the facts do not show any use of the building for that purpose.

The appeal should be allowed.

Higgins J.

The decision under appeal is that St. Patrick's College at Manly has no exemption from water, sewerage and drainage rates under sec. 88 of the Act of 1924. Sec. 88 (1) (h) has been already set out; and the ground for the decision is that the College is not "used solely" for religious teaching. Three adjoining pieces of land are vested in the Archbishop as trustee—one for the College, one for the Archbishop's residence, and the third has houses let on lease. The rents have to be applied for the upkeep, &c., of all the three sets of buildings. Under the existing leases the rents are payable and paid at the College. The College is used for the training of priests for the Roman Catholic Church; but it is said by the learned Judge that it is not used solely for religious teaching (to quote his very words) "by reason of the fact that it is used as an office for the collection of the rents of the lands which are vested in the trustee by the Act of 1914." The exemption from the rates is not claimed for the Archbishop's residence or for the lands that may be leased: it is claimed for the College only.

With sincere respect, I find myself unable to concur with this decision. This is not a question of abstract law, but of the application of certain facts to words used by the Legislature in the Metropolitan Water, Sewerage, and Drainage Act of 1924; and the words, not being technical, have to be construed according to the vernacular language—uti loquitur vulgus. Having regard to the context, I think that the construction adopted in the decision puts altogether too great a strain on the words "building which is used ... solely for ... religious teaching." It is not every incidental or accidental or subordinate use that is referred to, but what I may call the functional use—the use from the point of view of those who control the College. The College building may be used for cooking for the students; it may be used by a sparrow sitting on the chimney; or by a photographer for a photograph; or by an architect for a model; or by an aeronaut who wants to find out where he is. But if one, knowing all the facts, were asked "What is the building used for?" he would surely answer truly if he said "it is used only for the training of priests." The function as described in the private Act of 1914 is "buildings ... for educational purposes" as the Archbishop should authorize.

Looking at the context, it is seen that the numerous exemptions are based on purpose or function—land used for a public cemetery, or used for a common, or used for a public reserve or park, or used for a public charity, &c., solely for the purposes thereof, or used solely for a free public library, or used solely for the University or a college thereof, or occupied only for public works in course of construction for the Crown, or used or occupied solely for public worship or for religious teaching, or used or occupied solely as a playground for certain schools, &c. Here it is not alleged that there has been any departure from the function, the objective, of the building other than the receipt of rents by the trustee in pursuance of the leases. It is not even alleged that any particular part of the building has been earmarked as for the Archbishop's use only, either temporarily or permanently. As Dante said in his De Monarchia, "everything exists for the sake of some end." The sole end of the College for which it exists is training for the priesthood.

I had some doubt at first whether the training for the priesthood is "religious teaching" within the meaning of sec. 88 (1) (h). Perhaps what was primarily within the intention of the Legislature was religious teaching of the public; but when it is clear that the education for the priesthood is religious, and that the priests are designed to spread the teaching through the community, we have no right to qualify the broad words of the Legislature by imposing a limit to those words—a limit which the Legislature has not seen fit to impose.

As for sec. 88 (1) (d), it is not necessary for me to express any final opinion; but, in order to avoid any misapprehension, I ought to say this: I am not at all convinced that the words "public charity" in sec. 88 (1) (d) do not cover the College lands so as to exempt it from the rates. Ordinarily, the words "public charity" cover "charity" in the widest sense—the technical, legal sense of the Statute of Elizabeth. It is true that the other words, "public hospital," "public benevolent institution," in (d) might be covered by the words "public charity" in the technical, legal sense, and if so might be unnecessary; but the maxims as to ejusdem generis or noscitur a sociis afford only a prima facie presumption, and the presumption may not stand against the definite rule laid down by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel[5]: "In construing Acts of Parliament, it is a general rule ... that words must be taken in their legal sense unless a contrary intention appears." I doubt that the contrary intention clearly appears.

Appeal allowed. Suit dismissed with costs including costs of this appeal.

Solicitors for the appellant, Hughes & Hughes.

Solicitor for the respondent, R. W. Hooke.

[1] (1896) A.C. 500.

[2] [1849] EngR 159; (1849) 3 Ex. 344.

[3] (1849) 3 Ex., at p. 350.

[4] [1853] EngR 566; (1853) 8 Ex. 689.

[5] [1891] UKHL 1; (1891) A.C. 531, at p. 580.