Council of the Town of Southport v Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [1935] HCA 53; (1935) 53 CLR 296 (11 July 1935)

HIGH COURT OF AUSTRALIA

The Council of the Town of Southport Appellant; and The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

11 July 1935

Rich, Dixon and McTiernan JJ.

A. D. Graham (with him M. D. Graham), for the appellant.

Macrossan (with him Macgroarty), for the respondent.

A. D. Graham, in reply.

The following written judgments were delivered:—

July 11

Rich and Dixon JJ.

In this appeal the question is whether certain premises in the town of Southport occupied by the Order of the Sisters of Mercy are exempt from rating. Two exemptions are relied upon of those contained in sec. 216 of the Local Authorities Act 1902-1934. The first we shall consider is an exemption of land used exclusively for a public school (par. vi.). The premises consist of a substantial area of land upon which buildings have been erected, and a tennis court and other places of exercise have been made. There are two buildings connected by a covered way. The smaller of these is fitted as a school room or rooms and is a one storey building. It is used as an infants' school. The larger building consists of two storeys. The ground floor contains a class room and a dining room for the use of pupils, and music rooms. It also contains a chapel, sacristy, a refectory, a parlour and a kitchen. The upper storey contains a dormitory for pupils and some cells or bedrooms, and a community room for the use of nuns. Upon these premises a school has for many years been conducted by the Sisters of Mercy. It consists of an infants' school and a primary school for girls. It is attended by about one hundred and fifty scholars of whom some sixteen to twenty are boarders. A large percentage of the day scholars are received without fee, and the fees charged to the boarders are lower than would be necessary to defray the cost of their education and board. Twelve Sisters including a Sister Superior of the Order reside in the larger building. Three maids are employed at a wage. The Sisters of the Order carry on the teaching. The school is called "Star of the Sea Convent School Southport."

The Order of the Sisters of Mercy is a religious society or congregation of the Roman Catholic Faith. They are governed by the rules of their Order. The vows of the Order include a vow of poverty and a vow of obedience. The Sisters of the Order are enjoined, besides attending particularly to their own perfection, which is the principal end of all religious institutes, also to have in view what is the peculiar characteristic of the congregation, which is 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 duties, which explains the mode in which the upper floor of the building now in question is appointed. Members of the Order live in a community and according to Rule.

Of the three subsidiary purposes of the Order, viz., the education of poor girls, visitation of the sick and the protection of poor women, in Queensland the first, the education of poor girls, has assumed the greatest prominence. In practice at Southport the Sisters of Mercy do not neglect the visitation of the sick where occasion calls for it, but it is not permitted to interfere with their chief work, that of teaching. Throughout the school year each of the twelve Sisters ordinarily residing upon the premises takes some part in the conduct of the school and the teaching or care of the pupils. But it is evident that, according to the usual practice in ordinary schools, so many as twelve would not be necessary to conduct such an establishment if it were a secular school. During the school holidays Sisters, who reside at other convents or convent schools, are sent to reside in the community at Southport, which is a seaside resort. They are 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 the school as well as serving the purposes of the Sisters of the Order. 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 Sea Convent of Mercy.

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 exemption 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 indistinguishable 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 cells are all the consequence of the nature of the life of the Order. The land supplies the place upon which the entire institution is conducted. If it had not been for the unfortunately framed exemption, no one would, we think, have regarded the institution as a school to the exclusion of a convent, nor, on the other side, would it have been represented as a convent divisible from the school. The land is used for a single and indivisible institution, the dominant activity of which is the conduct of a school. But the conclusion that the use of the land for a school is not exclusive cannot be avoided, except by regarding the conventual life of the nuns as a mere incident of the school. To so regard it appears to us plainly to be an error.

For these reasons the claim to the exemption as land used exclusively for a school fails.

The second exemption relied upon under sec. 216 (iii.) is "land vested in or for the time being placed under the management or control of any person or corporation under or in pursuance of any statute for the purposes of public charities."

The land has been vested in the respondent corporation by transfer. The respondent corporation was constituted by letters patent pursuant to the Religious Educational and Charitable Institutions Act 1861. By sec. 1 of that Act the persons erected into a corporation are "capable to receive purchase acquire and possess to them and their successors so called or appointed to and for the uses and purposes of the said corporation and of the religious or secular institution by which such person or persons and their successors shall be ... called or appointed in accordance with the rights laws rules or usages of the community or institution to which" he or they "belong." It is said that the land is vested in the corporation in pursuance of this statute for the purposes of the Order which is a public charity. The plain answer is that the statute gives corporate existence and capacity to receive and hold the land for such purposes, but does no more. The land is not vested under or in pursuance of the statute; it vests by assurance, that is by transfer and registration.

The result is that the appeal must be allowed. The order of the Full 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 was permitted only upon terms. The order of the Court granting special leave has not been correctly drawn up. The terms were that the costs of the appeal should abide the order of the Court, not of the application for special leave. We would be disposed to order that the appellant pay the costs of the appeal, but in all the circumstances of the case, including the difficulty of the exemptions and the differences of opinion which they have evoked, we think justice will be best served by ordering that the parties abide their own costs of the proceedings in this Court and the Supreme Court.

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 accompanied 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 public school. This view which the Court is constrained to adopt makes it unnecessary to examine the difficult question of what constitutes a public school within the meaning of sec. 216 of the Local Authorities Act 1902-1934.

I agree that the claim for exemption founded on par. iii. of sec. 216 also fails for the reasons contained in the joint judgment of Rich and Dixon JJ.

The appeal should be allowed. I agree with the order as to costs, which will be read by Rich J.

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

Solicitor for the appellant, J. T. B. Price, for K. B. Price, Southport.

Solicitors for the respondent, Bergin, Papi & Finn.