Perth v Crystal Park Ltd [1940] HCA 35; (1940) 64 CLR 153 (26 November 1940)

The City of Perth Plaintiff, Appellant; and Crystal Park Limited and Another Defendant and Third Party, Respondents.

This is an appeal by special leave from an order made by Dwyer J. dismissing an action by the City of Perth for rates.

The defendant to the action was Crystal Park Ltd., but Crystal Park served a third-party notice on L. E. Shapcott, secretary to the Premier's Department, who with C. G. Morris forms the State Gardens Board. It appears that by an instrument dated 6th September 1938 the board leased or purported to lease portion of a reserve within the City of Perth to the defendant company. Since 1st November 1938 the company has occupied the portion of the reserve so leased and has used part of it for the purposes of recreation, part of it as a parking area and part of it as an automobile service station. Needless to say, in all three respects the company conducts its operations for its own gain. Dwyer J. dismissed the claim for rates on the ground that the land occupied by the company was not ratable.

The matter came before his Honour on a special case submitted by the parties for his opinion. As I have already said, the claim of the City of Perth was against the company, not against the State Gardens Board, which was drawn in only as a third party by the defendant. But for some reason that does not appear but may conceivably be explained by the terms of the lease from the board to the company, which was not laid before the court, all three parties agreed that, if judgment passed against the company, the liability should be transferred to the board as third party and judgment over should be entered against it. Not unnaturally, the company lost interest in the matter and was not represented before Dwyer J., and before us the counsel for Shapcott supported the judgment dismissing the action.

The legislation affecting the liability or immunity of the land in question to or from rates is confused to the point of bewilderment, but the one thing that stands out clearly from it is that the State Gardens Board can be under no liability to the City of Perth for rates. Whether it has been unwise or unfortunate enough to incur to the company a liability to indemnify it against a possibility of the company's liability for rates I do not know, but at all events I am not willing to impose any liability upon the board in respect of the company's occupation of the land for the company's benefit. The State Gardens Board derives its existence from the Parks and Reserves Act 1895, which is entitled "An Act for the Management of Parks and Reserves vested in the Crown." The Act confers power on the Governor to appoint persons to form boards of parks and reserves, to control and manage such of the parks and reserves as he may from time to time think fit (sec. 3). Parks and reserves are defined to mean parks and reserves vested in the Crown (sec. 2). The duty of the board is to control and manage the parks and reserves so committed to them (sec. 4). It will be noticed that the fundamental principle of the Act is that the board shall be charged with the management only of public parks and reserves which are vested in the Crown and therefore subject to all the powers and privileges belonging to the Crown. In the Municipal Corporations Act 1906-1938 there are to be found the exemptions which may be regarded as material to the question whether the land of a board of parks and reserves is ratable. They are sub-secs. 1 and 5 of sec. 380. Sub-sec. 1 excepts land the property of the Crown used for public purposes or unoccupied. If the State Gardens Board had given no lease of the land to the company or anybody else, this would have been a sufficient exemption so long as the reserve remained vested in the Crown as the Parks and Reserves Act 1895 contemplates. Sub-sec. 5, however, excepts land vested in any board under the Parks and Reserves Act 1895. How can land be vested in such a board? Control and management of the land can be and is committed to such boards, but to vest the land in the board is another matter. Perhaps the legislature made a mistake and forgot the nature of the Parks and Reserves Act 1895, but a court cannot proceed on the assumption that in matters of statute law the legislature is fallible. Perhaps a practice had arisen before sub-sec. 5 was enacted of attempting to vest land in boards of parks and reserves. For in the present case it appears that Orders in Council were made in the purported exercise of the power given by sec. 33 of the Land Act 1933-1937 directing that the land in question should be vested in and be held by the Parks and Gardens Board. I take leave to doubt the possibility of using sec. 33 in this manner. But, if a practice had grown up of making such vesting orders, it would explain sub-sec. 5 of sec. 380. Now, it is clear that sub-sec. 1 will give no immunity from rates to the company. Its occupation of land the property of the Crown would be a ratable occupation if that sub-section were the only source of immunity. But sub-sec. 5 says nothing about occupation or public purposes. If the land is vested in any board under the Parks and Reserves Act 1895, that is enough to relieve it from rates. Can the land in the present case be regarded as so vested within the meaning of this sub-section? The respondent Shapcott says that it can be so regarded because of the Order in Council to which I have referred. But the Order in Council can only be supported under sec. 33 of the Land Act, and, apart from the doubt I have already expressed as to using that section to vest a reserve in a board of parks and reserves formed under the Parks and Reserves Act 1895, there are certain other troubles under the power. The only relevant power is to direct a reserve to vest in and be held by persons to be named in the order. A board of parks and reserves is not a corporation but an unincorporated statutory body. The order "names no names" but attempts to vest the land in the board. Clearly enough it means that the land shall be vested in the board as a statutory body of changing membership. It does not mean that when a member dies the land shall remain vested in him together with his former colleagues or, if they all die, that it should pass to the executor of the last survivor. In short, I have little faith in the validity of this order. But then the question remains whether sub-sec. 5 ought not to be regarded as an effort on the part of the legislature to give exemption to all land under the control and management of boards of parks and reserves. If so, notwithstanding the inappropriate use or, indeed, misuse of the word "vested," the court, if it can see the intention, should give effect to it. My brother Williams in his judgment, which I have had the advantage of reading, citing Attorney-General for Quebec v. Attorney-General for Canada[1], has pointed out that the word "vest" is a word of "elastic import," which I take to mean that the application of the word depends upon the context and subject matter. But I cannot rid myself of the feeling that the draftsman is less unlikely to have been mistaken as to the true operation of the Parks and Reserves Act 1895 than to have used the phrase "land vested" in the sense of land the management of which is "committed to" a board. The high authority of the Privy Council in the case cited shows that some such meaning may be given to the phrase "land vested in trust," at all events when the person in whom the land is to be vested is a Commissioner of Indian Tribes and the object of the trust a tribe of Indians. It was held that the result of these words was that the title to the land remained in the Crown and the commissioner was given "such an interest as will enable him to exercise the powers of management and administration committed to him by the statute," but it does not appear what that interest was. In the present case the draftsman in other parts of the Municipal Corporations Act 1906-1938 shows a more technical tendency in his use of the word "vest": sec. 6, definition of public reserve—"vested in or under the care, control, or management of the council." The case of Municipality of South Perth v. Hackett[2], to which counsel referred, turned upon an exemption of all land belonging to a public body created by statute. The persons rated were public trustees established under an Act of Parliament, and the land was vested in them. They had set aside portion of the land for the use of a tennis club, but no attempt had been made to rate the tennis club. This court decided that the trustees were a public body created by statute within the meaning of the exemption, that the exemption formed a good defence to an action for rates notwithstanding that the trustees had not appealed from the rate and that the occupation of the tennis club and the question of whether, in allowing it, the trustees had gone beyond their powers had no bearing upon the ratability of the trustees themselves in respect of the land, which according to the decision of the court was exempt. In this decision I have been unable to find any Ariadne's thread to guide me through the labyrinth of this case. However, as I understand my colleagues are agreed in the conclusion that the provision ought to be applied to the land in question and as in point of probability I have no reason to think that this conclusion does not effectuate what the legislature had in view, I am not prepared to dissent from the opinion of the majority of the court that the appeal should be dismissed.

An Order in Council of December 1920 set apart certain land in the City of Perth as a public reserve. This Order in Council was, I presume, made under the authority of the Land Act in force at the time. An Order in Council, also made in December of 1920, but pursuant to the provisions of the Parks and Reserves Act 1895, appointed a board to be known as the State Gardens Board to control and manage the reserve. In March of 1938 the reservation of the land as a public reserve was cancelled and a new reserve was created. An Order in Council of 16th March 1938 again set apart the land as a public reserve and a description of the reserve and of the purposes for which the reservation was made (recreation and parking area) was published in the Gazette. All this was done, I apprehend, under the provisions of the Land Act 1933-1937, Part III., Reserves. Also on 16th March 1938, an Order in Council, made under the provisions of the Parks and Reserves Act 1895, appointed the State Gardens Board to manage and control the reserve last mentioned for the purposes of recreation and parking area. But "parks and reserves" under that Act means parks and reserves vested in Her Majesty: See sec. 2. Also by an Order in Council of 24th March 1938, which was superseded by an Order in Council made in July 1938 under the provisions of sec. 33 of the Land Act 1933-1937, it was directed that the reserve should vest in and be held by the State Gardens Board in trust for recreation and parking area with power to the State Gardens Board to lease subject to the approval of the Governor the whole or any portion of the reserve for any term not exceeding fifteen years from the date of the lease. This section provides that the Governor may direct that any reserve shall vest in and be held by any municipality, road board, body corporate or persons named in the order in trust for the public purposes named in the order. The State Gardens Board is not a body corporate, but it is a "collective name" for members of the board. The Order in Council thus names with sufficient clearness the persons in whom the reserve is vested: See Taff Vale Railway v. Amalgamated Society of Railway Servants[3].

In September of 1938 the State Gardens Board granted a lease of portion of the reserve to the respondent the Crystal Park Ltd., which thereafter occupied and still occupies the portion of the reserve so leased to it for the purposes of private gain as a recreation and parking area and as an automobile service station. The City of Perth, pursuant to the Municipal Corporations Act 1906, made and levied a rate for the year 1939 upon all ratable property within its municipal district and charged the Crystal Park Ltd. to such rate as the occupier of the land which it had leased from the State Gardens Board. The Crystal Park Ltd. contends that the land so leased and occupied by it is not ratable.

The Municipal Corporations Act 1906-1938, sec. 380, provides that all land shall be ratable property within the meaning of the Act save as thereinafter excepted. One of the exceptions is "land vested in any board under the Parks and Reserves Act, 1895, or in trustees for ... public resort and recreation." A proviso to the section, which makes ratable certain excepted lands, if leased or occupied for private purposes, is inapplicable to the exception relied upon by the Crystal Park Ltd. The State Gardens Board was appointed under the Parks and Reserves Act 1895 to manage and control the reserve of which the land leased to the Crystal Park Ltd. for the purposes of recreation and parking area forms a part. The power to reserve Crown lands for public purposes and to vest them in public authorities depended, in all probability, at the time of the passing of the Parks and Reserves Act 1895, upon the provisions of various enactments relating to Crown lands. The legislation governing the matter at the time of the passing of that Act I have been unable to trace, but the provisions of the consolidating Land Acts of 1898, sec. 42, and of 1933-1937, sec. 33, so provide. And these Acts confer, as already noticed, a power of leasing upon the authority in which the land was vested. Further, the exception from ratability in the case of lands vested in any board under the Parks and Reserves Act 1895 and in trustees for public purposes was only enacted in its present form in 1906: See Municipal Institutions Act 1900 and its amendments, and the Municipal Corporations Act 1906, sec. 376, which is sec. 380 in the reprint 1906-1938.

The result of this examination of the relevant legislation brings the present case precisely within the decision of this court in Municipality of South Perth v. Hackett[4]. The Parks and Reserves Act 1895 authorizes the appointment of boards to manage and control parks and reserves vested in His Majesty, but it does not vest or authorize any park or reserve to be vested in such boards. The vesting power comes from the legislation relating to Crown lands. Consequently the provision in the Municipal Corporations Act 1906 excepting land vested in any board under the Parks and Reserves Act 1895 cannot refer to vesting under that Act but to a vesting otherwise effected in a board appointed under that Act. The exception then is of land vested in any board appointed under the Parks and Gardens Reserves Act 1895, without any reference to the purpose of the vesting or the occupation or use of the land, and the proviso to sec. 380, which makes ratable certain excepted lands, if leased or occupied for any private purpose, is inapplicable. Accordingly, the lease to and the occupation of portion of the park and reserve in the present case by the Crystal Park Ltd. for private purposes is irrelevant, for the Act excepts the land in the circumstances stated from ratability in any and every hand.

The appellant, the municipal council of the City of Perth, appeals against a decision of the Supreme Court of Western Australia that portion of reserve No. 21824, situated in the municipality and at present occupied by the respondent company—Crystal Park Ltd.—is not ratable property within the meaning of the Municipal Corporations Act 1906-1938, during its occupancy by the company or any successor in title. The decision was given in a special case stated in an action in which the appellant sued the company to recover rates amounting to £38 15s. for the year ending 31st October 1939. The other respondent, the president of the State Gardens Board hereinafter mentioned, was added as a third party to the action and the special case. Notice of the valuation and the rating of the land was served upon the company by the appellant on or about 30th January 1939.

The Municipal Corporations Act 1906-1938, sec. 380, provides that "all land shall be ratable property" save as therein provided. Seven sub-sections then follow, describing the lands which are exempt. I need only refer to sub-sec. 5, which is in the following terms: "Land vested in any board under the Parks and Reserves Act, 1895, or in trustees for agricultural or horticultural show purposes, or zoological or acclimatization gardens or purposes, or for public resort and recreation."

The Parks and Reserves Act 1895, sec. 2, defines "board" to mean "a board of parks and reserves appointed under this Act," and "parks and reserves" to mean "parks and reserves vested in Her Majesty." Sec. 3 provides that (sub-sec. 1), for the purpose of controlling and managing parks and reserves, the Governor shall appoint persons to form boards of parks and reserves, and may from time to time cancel and revoke such appointments and may appoint each of such boards to control and manage such of the parks and reserves as he may from time to time think fit; (sub-sec. 3) a board may sue and be sued and all legal proceedings may be taken by and against a board in the name of the president of the board. Sec. 4 provides that it shall be the duty of a board to control and manage all parks and reserves committed to it. The Act confers on a board various express powers of control and management, all of which are exercisable by the board itself or by a committee thereof. The Act does not authorize a board to grant a lease.

The use and disposal of Crown lands in Western Australia is regulated by the Land Act 1933-1937. Part III. thereof deals with reserves. Sec. 29 authorizes the Governor to dispose of Crown land for the objects and purposes therein mentioned. Such objects and purposes include public gardens and the endowment of road boards within the State. Sec. 33 is in the following terms:—"The Governor may by Order in Council published in the Gazette —(a) direct that any reserve shall vest in and be held by any municipality, road board, body corporate, or persons to be named in the order, in trust for the like or any other public purposes, to be specified in such order; or (b) may lease the reserve in the form in the Fourth Schedule, or grant the fee simple, to secure the use thereof for the purposes for which such reserve was made. In either case a power to sublet the reserve or any portion thereof may be conferred."

In 1938 one of the boards appointed under the Parks and Reserves Act, consisting of L. E. Shapcott and G. L. Needham, was known as the State Gardens Board. By Order in Council made on 9th March 1938 this board was appointed under that Act to manage and control the reserve No. 21824 for the purpose of recreation and parking area. By an Order in Council dated 13th July 1938, gazetted on 22nd July 1938, made under the provisions of sec. 33 of the Land Act, this reserve was vested in the State Gardens Board to be held in trust for recreation and parking area with power to the board to lease, subject to the approval of the Governor, the whole or any part thereof for any term not exceeding fifteen years from the date of the order.

On 6th September 1938 the board leased portion of the reserve to the company and it has occupied this portion since 1st November 1938 and has used parts thereof for the purpose of recreation, a parking area and an automobile service station respectively. All these parts have always been used by the company for the purpose of private gain.

Under sec. 33 of the Land Act no power exists to vest land in any board except a road board. The State Gardens Board is not a road board. Land can, however, be vested in persons to be named in the order in trust for the purposes mentioned in sec. 29 or any other public purpose to be specified in the order. No such persons were mentioned nominatim in the order of the 13th July. It is not necessary to decide the point finally for the purpose of this judgment, but it is possible that the State Gardens Board can be regarded as a collective name designating the individuals of which it consisted on that date (See Taff Vale Railway v. Amalgamated Society of Railway Servants[5]; Bombay-Burmah Trading Corporation v. Dorabji Cursetji Shroff[6]; In re Jodrell; Jodrell v. Seale[7]; In re Land Credit Co. of Ireland (Weikersheim's Case)[8]) and that the order was effective to vest the reserve in Messrs. Shapcott and Needham as individuals on the trusts and with the power to lease therein mentioned. The reserve would then be land vested in trustees for public resort and recreation and would be exempt from rates under sub-sec. 5. The exercise of the power to lease would not make the land ratable, as the provisos to sec. 380 with respect to leases do not apply to land included in sub-sec. 5.

If the order of 13th July was invalid because no persons were specifically named therein, the preceding order of 24th March would also have been invalid and the reserve would have remained in the Crown, but subject to the control and management of the State Gardens Board in accordance with the order of the 9th March. The purported lease to the company would be void, and the company would be a trespasser (Roach v. Bickle[9]; Maritime Electric Co. Ltd. v. General Dairies Ltd.[10]). But the land would nevertheless be exempt from rates under sub-sec. 5.

The word "vest" is a word of elastic import, and a declaration that lands are vested in a public body for public purposes may "pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively": See Attorney-General for Quebec v. Attorney-General for Canada[11]; Bradford v. Mayor &c. of Eastbourne[12]; Municipal Council of Sydney v. Young[13].

The fact that the Parks and Reserves Act gives to a board the power to control and manage parks and reserves which are to remain vested in the Crown shows that the word "vest" in sub-sec. 5 is used in this wide sense because the legislature must have intended that such parks and reserves should be exempt from rates, and the express reference to such boards appears to indicate that this exemption was meant to flow from this sub-section.

It follows that, whether the Order of 13th July was effective and the lease was authorized or it was ineffective and the lease was unauthorized, the result is the same. On either view the case is governed by the decision of this court in Municipality of South Perth v. Hackett[14] to which we were referred. The rating statute there in question, the Municipal Institutions Act 1900, exempted, inter alia, land belonging to public bodies created by statute. It was held that the trustees under the Zoological Gardens Act 1899 (W.A.) were such a body and that land which had been granted to and belonged to them did not become ratable because they allowed it to be used as a private tennis club, whether this use was authorized by the terms of their trust or not.

Solicitors for the appellants, Northmore, Hale, Davy & Leake, Perth, by Hedderwick, Fookes & Alston.

Solicitor for the respondent Shapcott, Dunphy, Crown Solicitor for Western Australia.

[1] (1921) 1 A.C., at p. 409.

[2] [1908] HCA 73; (1908) 8 C.L.R. 44.

[3] [1901] UKHL 1; (1901) A.C. 426, at pp. 439, 440, 445.

[4] [1908] HCA 73; (1908) 8 C.L.R. 44.

[5] (1901) A.C., at pp. 439, 440.

[6] (1905) A.C. 213.

[7] (1890) 44 Ch. D. 590; (1891) A.C. 304.

[8] (1873) 8 Ch. App. 831, at pp. 837, 838.

[9] [1915] HCA 80; (1915) 20 C.L.R. 663.

[10] (1937) A.C. 610.

[11] (1921) 1 A.C., at p. 409.

[12] (1896) 2 Q.B. 205, at p. 211.

[13] (1898) A.C. 457.

[14] [1908] HCA 73; (1908) 8 C.L.R. 44.

High Court of Australia

Perth v Crystal Park Ltd [1940] HCA 35; (1940) 64 CLR 153 (26 November 1940)

HIGH COURT OF AUSTRALIA