Down v Attorney-General (Qld) [1905] HCA 15

Down v Attorney-General (Qld) [1905] HCA 15 - HCA 1905 case summary — Zoe

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(Guerra CJ - But would the words of the grant'and forno ather purpose" take the ease out of the scope of the Act?} mThis case is not governed by the Statutes under which the 'tmstees are appointed; but the words of the Act making the tees the managers of the land have a strong bearing on the construction of these trasts. In Grand Junction Canal Co. y, Petty (1), where land was acquired and used by a canal com- yy under their Statutes for the purposes of a towing-path, it held that such land might be dedicated as a public highway, ifsuch use be not incompatible with its use as a towing-path shen required by the company. Here the trustees are in the position of absolute owners, and are not using the land for pur- 'poses inconsistent with the trust. {O'Connor J. - Anything which would make the ground more attractive to the public and provide more facilities of access would Jepermissible. But does this case come within that rule?) The general incidents of ownership cannot be curtailed except so far as their exercise is inconsistent with the trust. The Acts der which the trustees are appointed make them owners or 'managers, empower them to lease up to three years, so long as such power is not interfered with by the terms of the grant, and over three years with the consent of the Governor-in-Couneil. {Grirriru C.J. referred to In re Gonty and Manchester, Siefield and Lincolnshire Railway Co. (2); Caledonian Rail- y Co. v. Turcun (3); and Foster v. London, Chatham, and Dover Railway Co. (4).] The question is, will the user objected to prevent the use of the ground for the main purpose of the trust: Bayley v. Great Western Railway Co. (5). Here the main purpose of the trust would not be interfered with, as the agreement provides that the gound can only be used for pony racing when not required for 'ticket or football, and that during pony racing, the playing found is not to be used by the spectators: Attorney-General v. Twee(6). Paragraph 10 of the defence, which states that the 'Weay and trotting races were only held temporarily, and at such

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'wy other purpose. 'The respondent contended that the words in "the Queensland form of grant imply a similar provision, 'The New South Wales Act, 18 Viet. No. 33, called the Public 'Parks Act 1854, which recites that it is expedient that bodies 'oftrustees with perpetual succession should be created for the of holding managing and protecting lands granted or dedicated to purposes of public recreation, convenience, 'ealth and enjoyment, provides that when lands are granted by 'the Crown to trustees for such purposes the trustees shall be a 'dy corporate, and declares (sec. 5) that trustees appointed by 'virtue of the Act shall have all the powers of absolute owners pt for the purposes of alienation, and that they may make 'rules and regulations (subject to the approval of the Governor-in- Council) for, amongst other things, " regulating the use and enjoy- ment of the lands." | The Trustees of Public Lands Act 1869, (33 Vict. No. 2), rwites in the preamble that from time to time sundry Crown lands have been granted and may hereafter be granted to various individuals "upon certain trusts for public purposes and no other," ai that by an Act 28 Vict. No. 22, certain powers had been given to such trustees the exercise of which had proved prejudicial tothe public interests. The Act then repeals the Act of 28 Vict., 'td substitutes other provisions. It provides, amongst other things, that, notwithstanding the provisions of the Real Property Att 1861, and in particular, the provisions of see. 79 of that Act, (which in terms confers an absolute power of alienation upon 'istered proprietors who are trustees), it shall not be lawful for 'ch trustees, é.c., those referred to in the preamble, to sell, transfer, srmortgage any land vested in them for any such public purpose, "tor to lense the same for any term exceeding three years" 'Scept under the provisions of the Act (sec. 3). See 7 provides tit it shall be lawful for such trustees to lease the Jands vested 'them upon trust subject to certain conditions set out in secs. 8 ttl9. These provisions do not seem to affect the power to lease fora term not exceeding three years, which is formally conferred Wythe Real Property Act as well as by see. 5 of the Act of 1854, the word "alienation" in that section includes leasing.

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<= _ purposes whatsoever," two questions arise - Whatare their Dows and have they on the facts proved exceeded them ? T vast much impressed by Mr. Lukin's argument that it would be inp Guvrnan sible to give a meaning to the negative words of the trust if thy Querxstanv. were not to be taken as prohibiting any use whatsoever of th ocamers, lands other than that expressly allowed. But on considerai that difficulty becomes less formidable. The deed must be asa whole. The trustees have to comply with the condition of draining the ground; they must form and maintain it. 'The lar has recognized in the Brishane Cricket Ground Act 1801 tht there is a mortgage debt on the land, and therefore inte to be paid. All this implies that an annual ineome innstbe found by the trustees. The strict reading of the deed contended for b Mr. Lukin, and upheld by Mr. Justice Real, would dlose sources of revenue except those derived from cricket and oth athletic sports or from sources ancillary thereto. Tt would be impossible to let the ground, - say for such purpose as an evening concert, or to let any space on the ground or buildings for adverti- ing purposes, or for purposes of agistment. In fact such a reading would prevent the temporary and casual use of the ground formany purposes, which, while bringing in revenue, could not in any way interfere with the use of the ground for the express purposes the trust. A construction which leads to such eonsequeneesought not to be adopted unless there is no other reasonable construction to be found. The case most in point for the respondent is Attorney-General v. Mayor &e. of Southampton (1). That det sion turned upon the express words of the Statute defining the duty of the corporation in regard to the cricket ground there im question. The holding of the cattle fair on the cricket growl was so plainly contrary to the express directions of the Statute that there was no possibility of any other construction than th adopted by the Court. It has been urged by the appellants tht the expression "and for no other purposes whatsoever," need 20 necessarily be construed as imposing a limitation narrower tht that to be implied from the positive words defining the purps® of the trust, and they cite the observations of Lord Watson ™ (1) 1 Gif, 363. i

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Attorney-General v. Great Eastern Railway Co. (1) in support oftheir contention, That was a case in which the powers of a nuilvay company were conferred by Statute, and in reference to these powers Lord Watson says: "'That principle, in its appliea- tio to the present case, appears to me to be this, that when a nilway company has been created for public purposes, the legis- ature must be held to have prohibited every act of the company which its incorporating Statutes do not warrant either expressly orby fair implication." That appears to be a correct statement oftherule of interpretation in such eases. It would seem, therefore, that Statutes authorizing the taking of lands for railway purposes ust be read as if containing an express prohibition against the use of the land for any other purposes. Or, to put the proposition inanother form, the only authority given by the Statute in such cases, is to use the land exclusively for railway purposes. That mle of interpretation would seem to be equally applicable to the deed under consideration, and, in that ease, the prohibitory words lied on by the respondent would have no more force than the word "exclusively." Read from this point of view, the eases in which powers conferred by Statute on railway companies and public bodies, even although without express prohibition against other uses, become directly in point. From these cases a reason- able rule of construction is, in my opinion, to be gathered. In Attorney-General v. Teddington Urban Council (2) the land was ajuired and held for sewerage purposes, but on a portion of it not at that time required for those purposes the council had made a temporary path, and placed benches for the recreation of the public. Mr. Justice Romer refusing to restrain the council from such use of the land, said (3): "I know nothing which makes it unlawful for "council such as these defendants to permit vacant land in their Possession, and not at the time required for the ultimate purpose for which they acquired it, temporarily to be used as a recreation Sound, provided care is taken to prevent any rights being 'cquired over it by the public or otherwise which would prevent

interfere with the council using it for such ultimate purposes

At a glance

Court

Decision date

Before

Source

Judgment (181 paragraphs)