Little Company of Mary (SA) Incorporated v Commonwealth [1942] HCA 26

[107]

In the instant case the facts are stated by the parties as they exist at present, and we have not to do with any finding of a magistrate, commissioner or court, and speculations as to the future operations of the association, whether, e.g., it might cease to carry on the hos- pital or sell the property belonging to it, areirrelevant. The Calvary Hospital was first established partly by public subscriptions and is now partly subsidized by gifts, legacies and donations from members of the public. I am aware that these facts are not conclusive, but they are not immaterial (Shaw v. Halifax Corporation (5) ). The association was incorporated pursuant to a public Act - Associations Incorporation Act 1929-1935 (S.A.) - an Act which excludes " associa- tions for the purpose of trading or securing pecuniary profit to the members from the transactions thereof" (sec. 3). The objects or purposes of the association are stated in the rules filed in the office of the Registrar of Companies pursuant to sec. 11 of the Act. They are as follows : - (i) To acquire and hold property in the name of the association and for the association. (ii) To establish and carry on a nursing institution or nursing institutions. (iii) In particular to establish and maintain a hospital or hospitals for the benefit of the public generally, irrespective of class or religious belief, and par- ticularly to maintain the same for the poor and those of limited means. (The italics are mine.) Additions and alterations to such rules must also be filed in the Registrar's office (sec. 11). The Registrar of Companies, who is charged with the administration of companies registered under the Companies Act 1934-1939 (S.A.), secs. 315-324, is also the public officer empowered to supervise and control associations incorporated under the Associations Incorporation Act, secs. 3, 10, 11, 12, 14, 15. Under sec. 25 the Governor may make regulations for or with respect to--(a) the inspection of documents kept by the Registrar under this Act ; (d) generally, all matters or things necessary or convenient to be prescribed for carrying this Act into effect.

[112]

And by sec. 20 of this Act every incorporated association may be wound up under sec. 345 of the Companies Act 1934-1939 (S.A.). Thus it cannot be predicated of the plaintiff association or of the hospital it " maintains" that it is private, domestic, peculiar, or essentially apart from the current national life (Zhe Trustees of the Cardinal Vaughan Memorial School v. Ryall (1) ). Under sec. 15 of the Associations Incorporation Act cancellation of the plaintiff's incorporation would follow, if its transactions became such that it was not, or had ceased to be, an association within the meaning of sec. 3, e.g., that it was trading or securing pecuniary profits to its members from its transactions. The effect of incorporation appears to vest in the corporation personal and real property held in trust or on behalf of the association (sec. 9). This is a provision which makes for permanency, but neither permanency nor ownership is conclusive or essential, although they are factors to be considered (Girls? Public Day School Trust v. Ereaut (2) ). The Calvary Hospital is also approved under another public Act (Nurses Registration Act 1920-1938 (S.A.) ) as a training school for the whole of the prescribed courses of both general nursing and midwifery. " The hospital is open to the public at all times. Admassion as a patient is conditioned on the applicant being a patient of a legally qualified medical practitioner and that a bed is vacant" (par. 9 of the case). These conditions are insisted on in every hospital, and no member of the public has an unqualified right of admission, except perhaps in the case of casualties, and even in those cases the doctor who attends the outdoor patient and the senior to whom he reports decide whether the casualty in question should be admitted to a ward. As a hospital is primarily an institution for the reception of the sick and not a boarding house these conditions are necessary for its proper administration. Patients are expected to pay for treatment or contribute to their maintenance. Charges, however, are reduced where the person is not in affluent circumstances. Patients who are in genuinely necessitous circum- stances are not expected to pay and generally do not pay for any- thing (par. 10 of the case). Outpatients are treated to special services such as X-ray and diathermy, &c., and in proper and deserving cases at reduced charges or without charge (par. 14 of the case). The hospital is fully equipped and staffed to render in a competent and up-to-date manner all such services, medical and surgical and nursing, as are usually rendered by hospitals of the larger sort. The total value of all the land and buildings of the said hospital is over £100,000. The plant and fittings of the hospital are of the estimated additional value of £30,000.

[114]

The staff of the hospital consists of approximately thirty-five Sisters of the Congregation of the Little Company of Mary (all of whom are qualified nurses, and some of whom have special qualifica- tions), about twenty-five registered nurses who are laywomen, and about fifty trainees or probationer nurses, as well as a number of men and women domestic and other servants. The Sisters them- selves receive no salary or remuneration whatever for their services, beyond their food and clothing (pars. 5 and 6 of the case). The hospital is conducted by the plaintiff, which is a public corporation (par. 3 of the case). The fact that the Calvary Hospital was founded as a denominational institution and is carried on by a religious body does not derogate from its character and religion does not enter into the consideration of the question (Trustees of the Cardinal Vaughan Memorial School v. Ryall (1)). And I do not consider that the fact that the hospital has not been declared a public hospital pursuant to sec. 5 of the Hospitals Act 1934-1941 (S.A.) is in the circumstances of much or any importance. " Public control" is not, in my opinion, an essential element in the definition of " public hos- pital." In any event the sections of the Associations Incorporation Act to which I have referred show that the association, its rules and operations are subject to supervision by a public officer and a court. In this connection I concur in the interpretation of the expression "public hospital" occurring in a similar context in the Local Government Act 1919-1940 (N.S.W.) by Jordan C.J. in O'Connell v. Newcastle Municipal Council (2), where his Honour says : - " I can see nothing in the phrase ' public hospital' nor in its immediate or general context to suggest that it is confined to hospitals which are subject to some form of public control (whatever is to be understood by this expression) and whose income and property are not at the disposal of any private authority. On the contrary, it is the purpose to which the hospital is directed, not the manner in which it is con- trolled, which determines whether it should be regarded as a public hospital " (3). The terms and circumstances in which sick relief is given are material conditions. Public service is the discrimen - and publicity may be gauged by the extensiveness of an institution's operations (A.-G. v. Pearce (4); Shaw v. Halifax Corporation (5) ). The admitted facts show that the hospital, having regard to its objects and operations, is carried on for the benefit of the com- munity or an appreciably important class of the community

[125]

Pursuant to the rules of the congregation or association of the Little Company of Mary and the rules of the incorporated association a hospital known as the Calvary Hospital has been erected and established in Adelaide. It is owned by the incorporated association and was conducted as a hospital during the year of contribution in question here (1942) and for many years prior thereto. The build- ings, which are valued at more than £100,000, comprise a general hospital, a maternity hospital, a convent or residence for the Sisters of the Little Company of Mary, accommodation for nurses and domestics, a laundry, and a mortuary. The plant and fittings at the hospital are of a value of £30,000 or thereabouts. The hospital was established and is carried on by means of moneys provided by the Australian Province of the Little Company of Mary, by public subscriptions, gifts, legacies, borrowed moneys, and charges made to patients. And it is fully staffed with Sisters, nurses and domestics, but it has, as-yet, no regular system of honorary or resident medical officers. The patients as a rule arrange for their own medical attendants, but the Sisters sometimes arrange for attention by medical practitioners, who in some cases render professional services without any fee. The hospital is open to the public of all denomina- tions, but the public have no right of admission, and in any case admission is subject to a bed being available and to the person seek- ing admission being a patient of a legally qualified medical prac- titioner. Charges are made to patients for their maintenance and treatment at rates fixed by the management of the hospital, but it is a common occurrence that rates are reduced or not charged to poor and necessitous patients. The Sisters receive no salary or remuneration for their services, though their necessary accommoda- tion, food, and clothing are provided. The hospital is not carried on for profit and in fact no person derives any profit or monetary gain therefrom.

Little Company of Mary (SA) Incorporated v Commonwealth [1942] HCA 26 - HCA 1942 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (143 paragraphs)