Perth v Crystal Park Limited [1940] HCA 35

High Court of Australia|1940-07-01|Before: Per Starke J, Per Williams J, Duyer J

YSTAL PARK LIMITED AND ANOTHER Responpents. Derenpant anp Tarp Parry,

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

il Government - Rating - Exemptions - Board having powers of control and 'management of land - Whether land " vested" in board under Parks and Reserves Act 1895 (W.A.) (59 Vict, No. 30) - Municipal Corporations Act 1906-1938 »

380 of the Municipal Corpora: Sec. 33 of the Land Act 1933-1937

(W.A.) provides that "the Governor may by Order in Council published in the Gazette - (a) direct that any reserve shall vest in and be held by any munici- pality road board body corporate or

persons to be named in the Onder in trust for . . . public purposes to be specified in sack Onder," and that "a power to sublet the reserve or any portion thereof may be conferred."

CorPoRation Per Starke J.: Sec. 380 (5), by the words "vested in any board under th

no Parks and Reserves Act," referred, not to a vesting under the latter Act, bu Crysrat

Park Lop. to a vesting otherwise effected in a board appointed under that Act, and

a land in question was, pursuant to the Land Act and the Order in Couneil of July 1938, vested in the persons constituting the State Gardens Board as

Per Williams J.: The word " vested," in sec. 380 (5), was not to be

stood in the strict sense, and it was sufficient for the purposes of that sub:

Observations on the validity of the Order in Council purporting to " vest the land in question in the State Gardens Board, and, generally, on the meanin of the word " vest."

Municipality of South Perth v. Hackett, (1908) 8 C.L.R. 44, applied.

Decision of the Supreme Court of Western Australia (Duyer J.) affirme

Appear from the Supreme Court of Western Australia. 'The City of Perth sued Crystal Park Ltd. for rates in the Su Court of Western Australia, and Crystal Park Ltd. joined Shapcott. chairman of the State Gardens Board, as a third in the proceedings. The parties to the action then prepared special case for the opinion of the Supreme Court. It was sub stantially as follows : - :

The plaintiff is a municipal corporation within the mean the Municipal Corporations Act 1906-1938 (W.A.).
The defendant is a company incorporated under the provisio of the Companies Act 1893 (W.A.).
The third party is the chairman of the State Gardens Bo
The State Gardens Board is a board consisting of two pe appointed by the Governor in Council pursuant to sec. 3 of Parks and Reserves Act 1895 (W.A.) to control and manage specified parks and reserves. The State Gardens Board is not incorporated body.
(a) The first members of the board were Louis Edward Shape and Charles Glazebrook Morris, who were appointed by the Govern in Council on 15th December 1920. The following is a copy of notification of appointment as gazetted on 17th December "Tt is hereby notified, for public information, that His Exce

the Governor in Executive Council has been pleased to appoint, under the provisions of the Parks and Reserves Act 1895 Mr. L. KE. Shapeott. , Premier's Department, and Mr. ©. G. Morris, Under for Lands, as a board to be known as the ' State Gardens Board' to control and manage reserves Nos. 17615, 5957, B7122. A10887, A13012, 12510, 13375, B3595, A1150 and A17375, and to

Y it Mr. L. E. Shapcott as chairman of the aforesaid board. mi Pursuant to the provisions of sec. 8 of the Parks and Reserves Act 1895 the State Gardens Board (consisting of L. E. Shapcott and ©, G. Morris) made by-laws in respect of the above-mentioned The by-laws were published in the Government Gazette

dated the 17th December 1920 and provide (inter alia) : - (1) The erm "Gardens" shall mean and include only those reserves or ions thereof which have been enclosed by a fence for the purpose

{ utilising the land for gardens parks or recreation. " Permission " mean the permission of the board expressed in writing. (2) gardens shall be open to the public from 8 a.m. to sunset free charge except on special occasions (i.e. band or other concerts or inments sports gatherings &c.) on any of which occasions an ission fee not exceeding 1s. per head may be charged and taken re consent in writing of the board has been obtained. (3) No

m except by permission shall bring into or use in the gardens on these reserves any cart truck bicycle motor car motor cycle plane airship or other vehicle of any description whatsoever.

The present members of the board are Louis Edward Shapcott and George Loder Needham, the latter being appointed vice Charles lazebrook Morris (resigned) by the Governor in Council on 17th

leased to appoint, under the provisions of the above Act, Loder Needham, Under Secretary for Lands, to be a member e board (known as the State Gardens Board) controlling the set out in the notice appearing on pages 87 and 88 of the ent Gazette of 22nd January 1937, vice Charles Glazebrook "Morris (resigned) ; and to appoint the said George Loder Needham 'to be Acting Chairman of the said State Gardens Board during the al from the State of Mr. L. E. Shapcott."" 1 '7. By approval of the Lieutenant Governor obtained in Executive ' on 9th March 1938, reserve No. 5957 mentioned in the minute 'in Council dated 15th December 1920 and referred to in the minute 'in Council dated 17th March 1937 was cancelled and a new reserve ) No. 21824 was created. The following is a copy of the notice of

ee 1938 : - " His Excellency the Lieutenant Governor in Exe;

Perm Council has been pleased to set apart as public reserves the la Corroration described in the schedules below for the purposes therein set Cervera, 1076/37. Perth - No. 21824 (recreation and parking area)

Park Lro, No. 731 (4a. Or. 22p.) (Plan Sub. 36). Reserves 1152, 5957 and

Council on 9th March 1938 the board was appointed to manage an control the reserve No. 21824 "for the purposes of recreation parking area." The following is a copy of the appointment gazetted on 18th March 1938: "His Excellency the Liew Governor in Executive Council has been pleased to appoint, the provisions of the above Act, the State Gardens Board as a bo to manage and control reserve 21824 (Perth Lot 731) for the purp of recreation and parking area."

By Order in Council dated 24th March 1938 the reserve 21824 was vested in the board in trust " for recreation and area" with certain powers of leasing. The following is a co) the Order in Council, which was gazetted on Ist April 19: "Whereas by section 33 of the Zand Act 1933-1937, it is m lawful for the Governor to direct that any reserve shall vest in be held by any municipality, road board or other person or to be named in the order in trust for any of the purposes set in section 29 of the said Act, or for the like or other publie p to be specified in such order, and with power of sub-leasing whereas it is deemed expedient that reserve 21824 (Perth Lot 73 should vest in and be held by the State Gardens Board in trust fo for recreation and parking area, Now, therefore, His Excellency the Lieutenant Governor, by and with the advice and consent of thi Executive Council, doth hereby direct that the before-menti reserve shall vest in and be held by the State Gardens Board is trust for recreation and parking area, with power to the said Sti Gardens Board to lease, subject to the approval of the Govern the whole or any portion of the said reserve for any term not exce' ten years from the date of the lease."

By Order in Council dated 13th July 1938 the reserve 21824 was vested in the board in trust " for recreation and pat! in area" with certain additional powers of leasing. The following a copy of the Order in Council, which was gazetted on 22nd J 1938 : - '' Whereas by section 33 of the Land Act. 1933-1937 made lawful for the Governor to direct that any reserve shall in and be held by any municipality road board or other p

to be named in the order in trust for any of the purposes h in section 29 of the said Act, or for the like or other public es to be specified in such order, and with power of sub-leasing : whereas it is deemed expedient that reserve 21824 (Perth Lot

r recreation and parking area: Now, therefore, His Excellency th Lieutenant Governor, by and with the advice and consent of ti 1e Executive Council, doth hereby direct that the before-mentioned reserve shall vest in and be held by the State Gardens Board in

Gardens Board to lease subject to the approval of the Governor th whole or any portion of the said reserve for any term not exceeding years from the date of the lease. The Order in Council dated

March 1938 regarding the above is hereby superseded."

By agreement dated 6th September 1938 the board leased

eat The defendant has occupied that portion of the reserve since t November 1938 and still occupies it and has used part thereof

and part for the purpose of an automobile service station.

Tn the month of December 1938 the plaintiff, purporting to under the provisions of thé Municipal Corporations Act 1906, ide and levied rates totalling £38 15s. for the year ending on 31st er 1939 in respect of that portion of the reserve occupied by defendant.

lt Notice of the valuation and rating of the said land was served n the defendant on or about 30th January 1939.

If the defendant was liable in respect of the said rates, they payable by it to the plaintiff as to £19 7s. 6d. on Ist January and as to £19 7s, 6d. on Ist July 1939, but no part thereof has paid.

The parties to this action have agreed that the question to cided by the court is :

Is that portion of the said reserve leased to the defendant : tatable property within the meaning of the Municipal Corporations Act 1906-1938 during its occupancy by the _ defendant or any successor in title ?

The parties have also agreed (a) that, if the answer to the n propounded in par. 16 is affirmative, judgment shall be d in favour of the plaintiff against the defendant for the sum 15s. with costs to be taxed and in favour of the defendant the third party for the amount payable by the defendant e plaintiff, including costs together with the defendant's costs

for recreation and parking area with power to the said State -

to be taxed ; (b) that, if the answer to the said question is n judgment shall be entered in favour of the third party an defendant dismissing the plaintiff's claim and ordering the to pay to the defendant and to the third party their costs to he

Dwyer J., who heard the action, answered the question by st that the property was not ratable and gave judgment fo defendant and third party in terms of the special case, with cos

The City of Perth, by special leave, appealed to the High

Leake K.C. (with him A. D. G. Adam), for the appellant. of the Municipal Corporations Act 1906-1938 (W.A.) provides th all land shall be ratable property, with the exemptions set that section. There is a proviso to the section which pro' lands exempted by sub-secs. 2, 3 and 4 shall also be deemed rat while the same is leased or occupied for any private purpose. proviso does not apply here. Under sub-sec. 5 of the section, lan " vested " in any board under the Parks and Reserves Act 1895 (W or in trustees for public resort and recreation is exempted from Under sec. 412 of the Municipal Corporations Act the oceup the land is rated. Here the occupier of the land is the lessee. [ referred to Attorney-General for Quebec v. Attorney-General for (1).] But there is no land " vested " here in the board. can be " vested " under the provisions of the Parks and Rese 1895 atall. [He referred to sec. 33 of the Land Act 1933-1937 ( The exemption applies where land is vested in a board Parks and Reserves Act only ; " vesting " may mean the comn of the conduct and management by the Crown of one of its pursuant to the Parks and Reserves Act. " Vest" may hav meaning, but the Orders in Council under which the board ¢

and management conferred on the board by the Parks and R Act 1895 must have automatically ceased. If that is so, then tht is no land vested in any board under the Parks and Reserv 1895. The only vesting is under the Land Act 1933-1937, a

is not exempted by sec. 380 of the Municipal Corporations Act 1938.

There was no appearance for the respondent Crystal Park

Dunphy, for the respondent Shapcott. This land is either | vested in a board under the Parks and Reserves Act 1895 or

d in trustees for public resort and recreation. In either case it empt from rates (sec. 380 (5) of the Municipal Corporations Act The test is not the use which is made of the land. the land is vested either in such a board or in trustees it is non- le (Municipality of South Perth v. Hackett(1)). The Municipal s Act was passed in 1906, whereas the Parks and Reserves passed in 1895, and therefore, as the latter Act refers to the sr, the legislature must have had the provisions of the former :in mind. Therefore, when the word "vest" is used in the later t, it must have that interpretation which is consistent with the used in the earlier Act. The land must be " vested" in the wd within the meaning of sub-sec. 5, but the word " vest" d not be interpreted strictly or narrowly (In re Brown (A ic) (2) ; Corporation of Hyde v. Bank of England (3) ; Directors te. of Great Western Railway Co. v. May (4) ). Finally, this is land

ed for public resort and recreation or vested in trustees for The only section which deals with the g of reserves is sec. 33 of the Land Act 1933-1937 (W.A.). There word " trustee" in that section, but land may be vested by Governor by Order in Council "in trust for public purposes." e Order in Council of 24th March 1938 purported to vest the land the board "in trust for recreation and parking area." The pointment of the board under the Parks and Reserves Act and the

the Municipal Corporations Act. From the proviso to sec. 380 clear that land the subject of sec. 380 (5) does not lose the

mption merely because it is "leased or occupied for any private "

, in reply. The relevant legislation conferred no power on e Crown to vest the land in the State Gardens Board as a board. Order in Council, to be valid, must be read as vesting the land e members constituting the board as individuals. The land is vested in any board under the Parks and Reserves Act 1895 or \ trustees for public resort and recreation within the meaning of 380 of the Munieipad Corporations Act. [He referred to Mayor of Essendon v. Blackwood (5).] Municipality of South Perth v. t (6) is distinguishable. Cur. adv. vult.

8 CLR. 4, at 46, (4) (1874) LR. 7 HL, 2835 43 Ld. ach 06, QB.

176; 51 LJ. (5) (83H) App. Ca. 574 at pp. 583, (6) (1908) 8 cLR i

The following written judgments were delivered : - 4

Ricu A.C.J. 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 Ist 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 ry ratable. a

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 ba 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 i 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 St Gardens Board can be under no liability to the City of Perth for rates. Whether it has been unwise or unfortunate enough to inet to the company a liability to indemnify it against a possibility the company's liability for rates I do not know, but at all event 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 be The State Gardens Board derives its existence from the Parks and Reserves Act 1895, which is entitled "An Act for the Manage of Parks and Reserves vested in the Crown." The, Act confers power on the Governor to appoint persons to form boards of

he may from time to time think fit (sec. 3). Parks and reserves re defined to mean parks and reserves vested in the Crown (sec. 2).

committed to them (sec. 4). It will be noticed that the funda- principle of the Act is that the board shall be charged with management only of public parks and reserves which are vested the Crown and therefore subject to all the powers and privileges onging tothe Crown. Inthe Municipal Corporations Act 1906-1938 are to be found the exemptions which may be regarded as to the question whether the land of a board of parks and erves is ratable. They are sub-secs. 1 and 5 of sec. 380. Sub-sec. excepts land the property of the Crown used for public purposes or z If the State Gardens Board had given no lease of the

iption so long as the reserve remained vested in the Crown as Parks and Reserves Act 1895 contemplates. Sub-sec. 5, however, epts land vested in any board under the Parks and Reserves Act How can land be vested in such a board ¢ Control and manage- nt of the land can be and is committed to such boards, but to the land in the board is another matter. Perhaps the legislature a mhistake and forgot the nature of the Parks and Reserves Act : but a court cannot proceed on the assumption that in matters #f statute law the legislature is fallible. Perhaps a practice had en before sub-sec. 5 was enacted of attempting to vest land in of parks and reserves. For in the present case it appears Orders in Council were made in the purported exercise of the ower given by sec. 33 of the Land Act 1933-1937 directing that the

d 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 esting orders, it would explain sub-sec. 5 of sec. 380. Now, it is 'that sub-sec. 1 will give no immunity from rates to the company. occupation of land the property of the Crown would be a ratable on if that sub-section were the only source of immunity. sub-see. 5 says nothing about occupation or public purposes. » land is vested in any board under the Parks and Reserves Act 'that is enough to relieve it from rates. Can the land in the ease be regarded as so vested within the meaning of this on? The respondent Shapcott says that it can be so d because of the Order in Council to which I have referred. Order in Council can only be supported under sec. 33 of the 'Act, and, apart from the doubt I have already expressed as to Vou, LXV, u

reserves, to control and manage such of the parks and reserves H. C. or A.

duty of the board is to control and manage the parks and reserves Conronartox

using that section to vest a reserve in a board of parks and res formed under the Parks and Reserves Act 1895, there are 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 me that the land shall be vested in the board as a statutory body changing membership. It does not mean that when a member d the land shall remain vested in him together with his fom 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 to be regarded as an effort on the part of the legislature to give exemption to all land under the control and management of board of parks and reserves. If so, notwithstanding the inappropriate or, indeed, misuse of the word "vested," the court, if it can see th intention, should give effect to it. My brother Williams in his judgment, which I have had the advantage of reading, citi 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 depe upon the context and subject matter. But I cannot rid myself of the feeling that the draftsman is less unlikely to have by mistaken as to the true operation of the Parks and Reserves Ad 1895 than to have used the phrase "land vested" in the se of land the management of which is "committed to" a The high ey of the Privy Council in the case cited shows

tribe of Indians. It was held that the result of these words was the title to the land remained in the Crown and the commissio was given "such an interest as will enable him to exercise

the statute," but it does not appear what that interest was. the present case the draftsman in other parts of the Muni Corporations Act 1906-1938 shows a more technical tendency i his use of the word "vest": sec. 6, definition of public

'vested in or under the care, control, or management of council." The case of Municipality of South Perth v. Hackelt (2 to which counsel referred, turned upon an exemption of all lan

(1) (1921) 1 A.C., at p. 409, (2) (1908) 8 C.L.R. 44.

public trustees established under an Act of Parliament, and land was vested'in them. They had set aside portion of the for the use of a tennis club, but no attempt had been made to te the tennis club. This court decided that the trustees were body created by statute within the meaning of the exemp- , that the exemption formed a good defence to an action for notwithstanding that the trustees had not appealed from the 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 spect of the land, which according to the decision of the court was D In this decision I have been unable to find any Ariadne's d to guide me through the labyrinth of this case. However, understand my colleagues are agreed in the conclusion that the sion ought to be applied to the land in question and as in point probability I have no reason to think that this conclusion does 'effectuate what the legislature had in view, I am not prepared

ke J. An Order in Council of December 1920 set apart land in the City of Perth as a public reserve. This Order in neil was, I presume, made under the authority of the Land Act force at the time. An Order in Council, also made in December

f 1920, but pursuant to the provisions of the Parks and Reserves

and manage the reserve. In March of 1938 the reservation e land as a public reserve was cancelled and a new reserve was 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 purposes for which the reservation was made (recreation and

g area) was published in the Gazette. All this was done, I under the provisions of the Land Act 1933-1937, Part Reserves. Also on 16th March 1938, an Order in Council, under the provisions of the Parks and Reserves Act 1895, the State Gardens Board to manage and control the e last mentioned for the purposes of recreation and parking . But "parks and reserves " under that Act means parks and ves vested in Her Majesty: See sec. 2. Also by an Order in eil of 24th March 1938, which was superseded by an Order in made in July 1938 under the provisions of sec. 33 of the 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 pe { 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 j 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 (1).

In September of 1938 the State Gardens Board granted a | 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 x 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. 4

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 Li for the purposes of recreation and parking area forms a part. Th 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 govern' _ ing 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 the Acts confer, as already noticed, a power of leasing upon the authority

1 which the land was vested. Further, the exception from ratability 'in the case of lands vested in any board under the Parks and Reserves 1895 and in trustees for public purposes was only enacted in its "present form in 1906: See Municipal Institutions Act 1900 and ts amendments, and the Municipal Corporations Act 1906, sec. 376, ch is sec. 380 in the reprint 1906-1938. result of this examination of the relevant legislation brings present case precisely within the decision of this court in Muni- ty of South Perth v. Hackett (1). The Parks and Reserves Act 1895 authorizes the appointment of boards to manage and control <s and reserves vested in His Majesty, but it does not vest or ize any park or reserve to be vested in such boards. The ting power comes from the legislation relating to Crown lands. quently the provision in the Municipal Corporations Act 1906 e land vested in any board under the Parks and Reserves 1895 cannot refer to vesting under that Act but to a vesting erwise effected in a board appointed under that Act. The tion then is of land vested in any board appointed under the ks and Gardens Reserves Act 1895, without any reference to the se of the vesting or the occupation or use of the land, and the o to sec. 380, which makes ratable certain excepted lands, if or occupied for any private purpose, is inapplicable. Accord- the lease to and the occupation of portion of the park and ve in the present case by the Crystal Park Ltd. for private rposes is irrelevant, for the Act excepts the land in the cireum- es stated from ratability in any and every hand. e appeal should be dismissed.

Wituums J. 'The appellant, the municipal council of the City of rth, appeals against a decision of the Supreme Court of Western that portion of reserve No. 21824, situated in the muni- lity and at present occupied by the respondent company - tal Park Ltd. - is not ratable property within the meaning of the Municipal Corporations Act 1906-1938, during its occupancy by 'company or any successor in title. The decision was given in 'ial case stated in an action in which the appellant sued the to recover rates amounting to £38 15s. for the year ending st October 1939. The other respondent, the president of the Gardens Board hereinafter mentioned, was added as a third y to the action and the special case. Notice of the valuation the rating of the land was served upon the company by the pellant on or about 30th January 1939. (1) (1908) 8 C.L.R. 44.

Corroration exempt. I need only refer to sub-sec. 5, which is in the follo

The Municipal Corporations Act 1906-1938, sec. 380, pro that "all land shall be ratable property " save as therein provide Seven sub-sections then follow, describing the lands which

terms: "Land vested in any board under the Parks and Res Act, 1895, or in trustees for agricultural or horticultural show pur. poses, or zoological or acclimatization gardens or purposes, or public resort and recreation." The Parks and Reserves Act 1895, sec. 2, defines " board " to me: "a board of parks and reserves appointed under this Act," a "parks and reserves" to mean " parks and reserves vested in H Majesty." Sec. 3 provides that (sub-sec. 1), for the purpose of trolling and managing parks and reserves, the Governor shall apy persons to form boards of parks and reserves, and may from to time cancel and revoke such appointments and may ap each of such boards to control and manage such a the pa D

Sec. 4 provides that it shall be the duty of a board to control an manage all parks and reserves committed to it. The Act confers a board various express powers of control and management, all which are exercisable by the board itself or by a committee the The Act does not authorize a board to grant a lease.

The use and disposal of Crown lands in Western Aneta regulated by the Land Act 1933-1937. Part III. thereof deals with reserves. Sec. 29 authorizes the Governor to dispose of Crown land

within the State. Sec. 33 is in the following terms : e may by Order in Council published in the Gazette - (a) direct th any reserve shall vest in and be held by any municipality, road boat body corporate, or persons to be named in the order, in trust for like or any other public purposes, to be specified in such order (6) may lease the reserve in the form in the Fourth Schedule, grant the fee simple, to secure the use thereof for the purposes} which such reserve was made. In either case a power to sub the reserve or any portion thereof may be conferred." In 1938 one of the boards appointed under the Parks and Reser Act, consisting of L. E. Shapcott and G. L. Needham, was known: 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

By an Order in Council dated 13th July 1938, gazetted on d July 1938, made under the provisions of sec. 33 of the Land this reserve was vested in the State Gardens Board to be held st for recreation and parking area with power to the board to subject to the approval of the Governor, the whole or any thereof for any term not exceeding fifteen years from the date order. 6th September 1938 the board leased portion of the reserve company, and it has occupied this portion since 1st November and has used parts thereof for the purpose of recreation, a g area and an automobile service station respectively. All

er sec. 33 of the Land Act no power exists to vest land in any rd except a road board. The State Gardens Board is not a road r Land can, however, be vested in persons to be named in order in trust for the purposes mentioned in sec. 29 or any other blic purpose to be specified in the order. No such persons were ientioned nominatim in the order of the 13th July. It is not y to decide the point finally for the purpose of this judgment, but it is possible that the State Gardens Board can be regarded as collective name designating the individuals of which it consisted that date (See Taff Vale Railway v. Amalgamated Society of Servants (1); Bombay-Burmah Trading Corporation v. [ ji Cursetji Shroff (2); In re Jodrell; Jodrell v. Seale (3) ; In re Land Credit Co. of Ireland (Weikersheim's Case) (4) ) and that the order was effective to vest the reserve in Messrs. Shapcott nd Needham as individuals on the trusts and with the power to 'therein mentioned. The reserve would then be land vested trustees for public resort and recreation and would be exempt n rates under sub-sec. 5. The exercise of the power to lease

to leases do not apply to land included in sub-see. 5.

the order of 13th July was invalid because no persons were cifically named therein, the preceding order of 24th March would 'have been invalid and the reserve would have remained in the n, but subject to the control and management of the State Board in accordance with the order of the 9th March. The lease to the company would be void, and the company

A.C., at pp. 439, 440. (4) (1873) 8 Ch. App. 831, at pp. 837, AAC, 213. 838. (5) (1915) 20 C.L.R. 663.

Ltd. v. General Dairies Ltd. (1) ). 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 pro- prietary 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 (2) ; Bradford v. Mayor ce. of East- bourne (3); Municipal Council of Sydney v. Young (4).

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 (5) 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) (1937) A.C. 610. (3) (1896) 2 Q.B. 205, at p. 211. (2) (1921) 1 A.C., at p. 409. (4) (1898) A.C. 457. ; (5) (1908) 8 C.L.R. 44.

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Judgment (102 paragraphs)