Randwick Corporation v Rutledge [1959] HCA 63;

Randwick Corporation v Rutledge [1959] HCA 63; - HCA 1959 case summary — Zoe

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2. In the Act, unless inconsistent with the context or subject matter, "public reserve" means a public park and "any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature" (s. 4). This definition makes decisive the fact of dedication or reservation for a purpose set out. The exception created by s. 132 (1)(c) is in respect of land used for a public reserve; the emphasis here is upon the use of the land and the language of the provision is inconsistent with the literal incorporation of the definition. To read the definition into s. 132(1)(c) would make it read "used for any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature". This would be nonsense. The definition, like any other part of the Act, may be used to assist in interpreting the words "a public reserve" in s. 132(1)(c), but this appears to be one of the uncommon cases where the context and subject matter of a particular section require the rejection of a statutory definition as fixing the meaning of words in that section. In Throsby v. Wingecarribee S.C. (1956) SR (NSW) 293; 73 WN 404 although it was said, and rightly said, that the definition in s. 4 cannot be read literally into s. 132(1)(c), the Court did import certain elements of the definition into the section; in that case, the requirement of dedication or reservation from sale by the Crown. I am not completely satisfied that s. 132 (1)(c) can have no application to land (not being a public park) unless it has been dedicated or reserved from sale by the Crown. Unless the definition in s. 4 is carried into s. 132(1)(c), I see no reason why this element should be regarded as essential in a provision which is dealing with nothing more than the use of land vested in the Crown or in a public authority or in trustees. This is a matter to which I shall return after dealing with what I regard as the central question in this case, namely, whether the subject land, being used for a purpose for which it was dedicated or reserved from sale, i.e. a racecourse, was in 1957 used for a public reserve. If it is, Hardie J., as the Full Court decided, was wrong in law. (at p62)

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3. Mr. Wallace, for the respondents, argued first that this question must be answered affirmatively because the terms of the Crown grant, the Australian Jockey Club Act and the Crown Lands Consolidation Act require the conclusion that racing is a public purpose and, for the purposes of s. 132(1)(c) of the Local Government Act, land which is used for a public purpose is, ipso facto, used for a public reserve. The Crown grant, which is dated 15th June 1863, was a grant of the subject land by Her Majesty Queen Victoria to the original trustees and was expressed in its heading to be for the purposes of public recreation. This grant was, it seems, made in conformity with the Imperial Act of 1842 (5 & 6 Vict. c. 36) which provided that nothing therein should prevent Her Majesty from disposing of, as in the public interest seems best, land required for places for the recreation and amusement of the inhabitants of any town or for any other purpose of public convenience, health or enjoyment. The grant was not, however, preceded by a reservation or dedication for a public purpose in the manner provided for by the Crown Lands Alienation Act 1861. The trusts declared were in the discretion of the trustees to permit and suffer the land to be used (1) as a racecourse, (2) as a racehorse training ground, (3) as a cricket ground, (4) as rifle butts and (5) "for any other public amusement or purpose" declared by the Governor in Council. By the grant, the trustees were expressly authorized to grant the Australian Jockey Club the exclusive right to use and occupy the lands. Some of the provisions of this Crown grant are recited in the preamble to the Australian Jockey Club Act 1873, which authorized the trustees to grant leases not exceeding twenty-one years to the Australian Jockey Club or any other racing club. It is provided that any lease to the Australian Jockey Club should be in the name of the Chairman and by s. 10 the Act provided that the lands authorized to be demised to the Chairman should be held by him and his successors in office "only for the purpose of being maintained and used for a public racecourse or for one or other of the purposes in the said deed of grant mentioned". Section 24 of the Crown Lands Consolidation Act, which embodied with amendments the relevant provisions of the Crown Lands Alienation Act 1861, authorized the Minister to dedicate Crown lands for certain enumerated purposes (including a racecourse) or "for any other public purposes". The submission made was that these provisions, taken together, show that in New South Wales the use of land for a racecourse or for the training of racehorses is, by statute, use for a public purpose. I am not prepared to accede to this argument. In the first place, I do not think that either the Australian Jockey Club Act or the Crown Lands Consolidation Act do stamp the use of land for a racecourse as use for a public purpose. It would, I think, be wrong to construe the words "for any other public amusement or purpose" in the Crown grant as implying that any use falling within the preceding enumeration has the character of a public amusement or purpose. Randwick racecourse could, for instance, be used as a training establishment and nothing more, and the general public entirely excluded, but it would seem to me to be putting an impossible burden on the words "other public amusement or purpose" to treat them as requiring that the use of the land as such a training establishment should be regarded as a public amusement or purpose. All that those words presuppose is that something falling within the preceding categories (1) to (4) is a public amusement or purpose. I agree with what was said as long ago as 1898 in Borough of Randwick v. Dangar (1898) 15 WN (NSW) 37, when in answer to the same argument as I am considering, G.B. Simpson J. said:- "Mr. Walker contends that the Act of Parliament contains a declaration that horse-racing is a public purpose. I do not think it does. The Act does not say that all the purposes for which the trustees may lease the land are public purposes" (1898) 15 WN (NSW), at p 39 In the same way, there is no sufficient justification for a construction of s. 24 of the Crown Lands Consolidation Act that would require the dedication of land for a racecourse of any kind or, for that matter, a school or a cemetery of any kind, to be regarded as a dedication for a public purpose. In the enumeration made in the section, the word "public" is repeatedly used when it is intended that the use for which there is a dedication must be a public use. Nor, as will be seen, is any land used for a public purpose ipso facto Nor, as will be seen, is any land used for a public purpose ipso facto used for a public reserve. (at p64)

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6. Turning now to the use of Randwick racecourse in 1957, it appears that the Australian Jockey Club exercised its exclusive right to use and occupy the land and that, save for members, officers and employees of the club or persons having business with horses in training, every person, except on race days, was prohibited from entering the land without the consent of the committee of the club or their authorized agent (by-law 17) and that this exclusion was enforced by encircling the land with walls and fences and by the use of gatekeepers and the like; the club did maintain and use the land for a public racecourse so that on race days it was open to common use upon payment of reasonable charges, and in the course of the year attendances totalled 900,000; the customary racecourse facilities were provided for trainers, jockeys, bookmakers and racegoers; members of the club, some 1,700 in number, enjoyed special facilities denied to the public generally; the course was used for the training of up to 500 horses on occasions; some non-members were permitted to use the land on occasions for parties, games or the enjoyment of the gardens; there were upon the land very substantial improvements effected by the club and for which, in the event of the cancellation of its lease, it would in some circumstances at least be entitled to compensation; and the club had accumulated profits amounting to 800,000 pounds arising from its use of the racecourse, which profits were available for the purposes of the club and have not been, and need not be, used upon the racecourse. Of all this, the element that is relied upon principally to give the racecourse the character of a public reserve is that the club used the land for public race meetings; this use, it is claimed, was not only the use for which the land was granted and which justified the description in the grant as one for public recreation, but was, in fact, use for the general welfare in the sense already stated, and that the other uses to which the racecourse was put should all be regarded as forming part of its use as a public racecourse. In this way it was also sought to reach the conclusion that it was used for a public reserve. (at p66)

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7. I am prepared to take the first step and to regard the use of this land for a public racecourse as a use for the purpose of public recreation, and this for two reasons. The first is the history of the course, i.e., its origin as disclosed in the Crown grant and the transactions that preceded it, including the request of members of the public in 1832 for the reservation of land for use as a racecourse, the approval of that request by the then Governor, the consequent marking upon charts of an area shown as "Reserve for Sydney Racecourse", the request in 1859 for a grant of the area so marked to trustees for a racecourse, the advice of the Executive Council that the appropriation of the land at present constituting the racecourse (which was the area marked on charts after 1832 minus and plus twenty acres) be approved, the approval of that advice by the then Governor in 1859, and the notification in 1860 that the land had been appropriated as a racecourse leading to the grant in 1863 "for the purposes of public recreation" as already stated. The other reason is the notorious popularity of racing as a pastime and the large attendance of members of the public at race meetings. Furthermore, it is beyond question that at all times material Randwick was, and was conducted as, a public racecourse, notwithstanding that it was open to racegoers only when meetings were held some twenty-seven times a year. Hardie J. decided that the land was not used for the purpose of public recreation on two grounds: (1) because it was not used or available for use by the public as of right, and (2) because taking everything into account, the land was not used for the purpose of public recreation. For the reasons I have already given, I consider that the facts that, except upon race days, the public has no access as of right to the racecourse, and that on race days those resorting there have to pay to enter, do not establish that the racecourse was not used for public recreation or enjoyment. Furthermore, the finding that the racecourse was not used for the purpose of public recreation because of the substantial restrictions upon the attendance of the public and the special position of the Australian Jockey Club and its members was, for the reasons I have given, in error. (at p67)

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5. The term "public reserve" - and the word "reserve" alone, when not controlled by a definition or a context indicative of a different sense - have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right. This use of the word is not new. For example in Town Life in Australia by R.E.N. Twopenny, published in 1883, the author said of Melbourne, "there are several pretty reserves notably the Fitzroy, Carlton and University Gardens, and the Regent's Park which are well kept . . ."; and of Sydney, "Unfortunately Sydney has very few reserves, and those few she keeps in bad order, with the exception of the Botanical Garden . . .". That the term "public reserve" has an accepted meaning is apparent from its use undefined in, for example, the Metropolitan Water Sewerage and Drainage Act 1924 (N.S.W.), s. 88(1)(c), where there is an exemption of public reserves from water rates in similar terms to that here in question, but without any definition; and the Land Tax Assessment Act 1910-1950 (Cth), s. 13, where there is an exemption of "land used and occupied solely as a site for a public garden, public recreation ground or public reserve". "Public reserve" can, however, be given a special and restricted denotation, as for example in the Trustees of Public Reserves Enabling Act 1924 (N.S.W.), which deals with land vested in trustees for any public purpose other than a public park. The exclusion of public parks from the scope of that Act is, however, artificial; for in common speech a public park is a typical form of public reserve. No useful purpose would be served by assembling all the statutory provisions from New South Wales and elsewhere in which public reserves are spoken of. They show that the term can have a meaning for legal purposes. Nevertheless it is not a term of art (cf. Girls' Public Day School Trust Ltd. v. Ereaut (1931) AC 12) But here there is a definition, and the first need is to understand what is meant by the words "dedicated or reserved from sale" in that definition. As Owen J. pointed out in the Supreme Court, the key to the meaning of these words, which appear also in other New South Wales Acts, is to be found in the history of the Crown lands legislation. (at p71)

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7. In 1825 and 1826 the need to reserve from alienation lands likely to be required for public needs in the future was emphasized to the Governor in connexion with new land regulations. Before then some land had been set apart for public purposes - the Government Domain in Sydney being the oldest of such reserves. But the first formal statement of a general policy seems to be a passage in a despatch dated 1st January 1825, from Earl Bathurst, Secretary of State for the Colonies, to Governor Brisbane (Historical Records of Australia, I, XI, pp. 434-444). It may be set out in full, for it is the prototype of all later enactments. After directions concerning the division of the territory of New South Wales into counties and parishes, the instructions continued: " . . . the next subject for consideration is the making the necessary reservations for public purposes. Of these the first, in order and importance, is the reservation, which must be made throughout every county, of Lands to be used for Public Roads and internal communications; of lands to be set apart as the scites of towns and Villages; of Lands to be appropriated for the erection of Churches, school-houses, Parsonage houses and burying grounds; of lands which may be proper to reserve in the neighbourhood of populous places as vacant grounds, either for the future extension of Towns and Villages, or for the purposes of health and recreation; and lands in the neighbourhood of navigable streams or the sea Coast, which it may be convenient at some future time to appropriate as Quays and Landing Places; more generally every object of public convenience, health or gratification, for the furtherance of which specific appropriations of Land will probably be necessary, should, as far as possible, be anticipated and provided for before the waste lands of the Colony are finally appropriated to the use of private persons". In the instructions issued to Governor Darling on his appointment the matter was again referred to. He was to constitute Commissioners for Lands, and they were to be required to report what lands it might be proper to reserve for various public purposes including "places fit to be set apart for the recreation and amusement of the Inhabitants of any Town or Village, and for promoting the health of such Inhabitants . . . or which it may be desirable to reserve for any other purpose of public convenience, utility, health or enjoyment". And he was strictly enjoined that he do not, "on any account or on any pretence whatsoever, grant, convey or demise to any person or persons any of the Lands so specified as fit to be reserved as aforesaid, nor permit or suffer any such Lands to be occupied by any private person for any private purpose" (Historical Records of Australia, I, XII, p. 117). The Surveyor-General reported to the Governor that the "wise and beneficent reservations directed . . . may certainly be effected without any difficulty; the reservations, which have already been made, will in a very considerable degree facilitate the execution of these Instructions . . .". (Historical Records of Australia, I.XII, p. 384). (at p72)

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8. Reserves for various purposes began to appear on maps. In 1831 there was, as is well-known, a change in the policy of the English Government as a result of the influence of Wakefield's theories. Land was only to be disposed of by sale - by auction with a minimum upset price, originally five shillings per acre but increased later. A Government Notice of 1st July 1831 making known the new policy stated that "all the lands in the Colony not hitherto granted and not appropriated for public purposes will be put up for sale". Land appropriated for public purposes was reserved; and from then on the description of any land as "reserved from sale" had a definite meaning. In the early 1840's, after the constitution in England of the Colonial Land and Immigration Board, various changes of policy occurred in connexion with the disposal of land and its minimum price; and in 1842 the Imperial Parliament passed the first statute on the subject, 5 & 6 Vict. c. 36, an Act for regulating the sale of waste land belonging to the Crown in the Australian Colonies. Crown land was not to be "conveyed or alienated . . . either in fee simple or for any less estate or interest unless such conveyance or alienation be made by way of sale nor unless such sales be conducted in the manner and according to the regulations prescribed". Section 3 contained the important proviso that: - "nothing in this Act contained shall extend or be construed to extend to prevent Her Majesty, or any person or persons acting on behalf of or under the authority of Her Majesty from excepting from sale and either reserving to Her Majesty, Her Heirs and Successors, or disposing of in such other manner as for the public interest may seem best such lands as may be required for public roads" - and a variety of other public purposes stated, including - "places for the recreation and amusement of the inhabitants of any town or village . . . or for any other purpose of public safety, convenience, health or enjoyment". Section 23 described "waste lands", for the purposes of the Act as - "any lands . . . which now are, or shall hereafter be vested in Her Majesty, Her Heirs and Successors, and which have not been already granted or lawfully contracted to be granted to any person or persons in fee simple, or for an estate of freehold, or for a term of years and which have not been dedicated and set apart for some public use". (at p73)

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10. The meaning of "dedicated" in the definition of "public reserve" with which we are concerned was discussed before us, but without reference to the main decisions. It is convenient to deal with the matter at this point because the word had come into fairly common use in New South Wales before its appearance in the Crown Lands Act of 1861 to which we were referred. At common law the only way in which land can properly be said to be dedicated to a public use is when it is dedicated as a highway (Ex parte Lewis (1888) 21 QBD 191, at p 197; Attorney-General for New South Wales v. Williams (the Government House Case) (1915) AC 573, at p 579; [1915] HCA 1; [1915] UKPCHCA 1; (1915) 19 CLR 343, at pp 345, 346 and per Isaacs J. in New South Wales v. The Commonwealth (the Garden Island Case) [1926] HCA 23; (1926) 38 C.L.R. 74, at p. 91. Although a private right to enjoy a park can be created as an easement appurtenant to an estate (In re Ellenborough Park (1956) Ch 131), our law does not recognize a public ius spatiandi vel manendi apart from charitable trust or statute (Attorney-General v. Antrobus (1905) 2 Ch 188) Nevertheless, in England a right in the inhabitants of a locality to use the village green for recreation and games could exist on a basis of ancient custom - a circumstance which may well have influenced the abovementioned directions to the Governors to provide reserves for the recreation and amusement of the inhabitants of towns and villages. It is possible that, since "public roads and internal communications" headed every early list of public purposes for which land was to be reserved, the expressions "dedicated and set apart" were thought to be applicable respectively to roads and other objects. The reservation of a road in a Crown grant amounted to dedication (Rapley v. Martin (1865) 4 SCR (NSW) 173) But it seems more probable that "dedicate" came to be used in New South Wales without any concern for its limited common law sense. It seems to have been thought to indicate something more formal than mere reservation from sale, something binding the Crown and creating some right in members of the public or of a section of the public. Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated; and so also were lands granted as commons. Early examples were the grants made in 1803 and thereafter for the support of the Female Orphan Institution, see the Orphan School Estates Act of 1836, 7 Geo. IV No. 4 and the Field of Mars Common and the Pitt Town Common created in 1804 (Field of Mars Common Resumption Act 1874; Ex parte James Phipps (1892) 13 LR (NSW) 171) But could land while still held by the Crown be said to be dedicated to a particular public purpose? The question was agitated in New South Wales before responsible government; and it became important after the new constitution came into operation in 1856 and the colonial legislature got control of the waste lands of the colony. It was finally settled by this Court and the Privy Council in 1915. It is unnecessary to describe here how the question first arose out of the long and complicated controversies caused by the dissolution in 1833 of the Clergy and School Lands Corporation. Its lands, some 450,000 acres, were not reserved for use for actual church purposes, but were rather reserved as glebe lands for the support of churches and schools - the counterpart in New South Wales of the clergy reserves in Canada, although their history was not attended by the same bitterness as there. In Attorney-General v. Eagar (1864) 3 SCR (NSW) 234, the Supreme Court held that, although these lands reverted to the Crown in 1833, they remained impressed with a trust for religious and education purposes generally; for it was said they had been dedicated in 1826. Sir William Atherton and Sir Roundell Palmer, as he then was, in an opinion which as law officers they gave to the Duke of Newcastle as Secretary of State in 1862, expressed "entire agreement with the opinion given by the colonial Judges in 1831; by the English law officers in 1839; and by all the colonial law officers, except Messrs. Martin and Lutwyche, since 1842; to the effect that these lands were, on 22nd June, 1842 (the date of 5 & 6 Vict. c. 36) already 'dedicated and set apart for a public use'." (1864) 3 SCR (NSW), at p 284 But when they went on to add that these lands were therefore not within the definition of waste lands in the Constitution Act (18 & 19 Vict. c. 54), and thus were not brought within the power of the colonial legislature in 1856, they were wrong, as we now know. Attorney-General v. Eagar (1864) 3 SCR (NSW) 234 established that lands impressed with a trust could not be diverted by the Crown to purposes alien to the trust. Its authority that such lands were dedicated is undiminished. And in connexion with the very lands there in question, the legislature later adopted the words "dedicated" in the Church and School Lands Dedication Act, 1880. But, in so far as the decision in Attorney-General v. Eagar (1864) 3 SCR (NSW) 234 appeared to place dedicated lands outside the authority of the legislature, it was mistaken. It was a later and even greater mistake to think that lands appropriated and taken into use by the Crown for a particular purpose (without the creation of any trust) became dedicated to that purpose and could not thereafter be used by the Crown for another purpose. All this was fully considered in Williams v. Attorney-General for New South Wales (the Government House Case [1913] HCA 33; (1913) 16 CLR 404; (1915) AC 573; (1915) 19 CLR 343) It suffices to say here that there can be no dedication in any strict sense unless a public trust be created. In the case of land vested in trustees as a public reserve in the form of a park or open space, to be maintained for the recreation of the public generally and not for the profit of any individuals, no difficulty arises; for the devotion of land to such a purpose is clearly charitable. And the word "dedicate" has come into general use in connexion with such parks and playgrounds. For example, s. 14 of the Church and School Lands Dedication Act 1880, referred to above, provided for the dedication of inter alia "squares, gardens and other places of public recreation". And in New South Wales the Housing Act 1912, s. 6(b), empowered the Housing Board to "dedicate . . . reserves for public recreation or for other public purposes" - an illustration not only of the word "dedicate" but also of the word "reserve" undefined. In England too it is not unusual, in rating cases especially, to describe public parks as dedicated: see Liverpool Corporation v. West Derby Assessment Committee (1908) 2 KB 647, per Fletcher Moulton LJ (1908) 2 KB, at p 667; Burnell v Downham Market Urban District Council (1952) 2 QB 55, per Evershed MR (1952) 2 QB, at pp 66, 67 (at p76)

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12. It is necessary to carry the history of the Crown lands legislation a stage further and to deal with the effect of the Act of 1861, for both sides placed reliance on it. By s. 2 of the Constitution Statute, 18 & 19 Vict. c. 54, the colonial legislature upon the introduction of responsible government in 1856 got "the entire management and control of the waste lands belonging to the Crown in the Colony". In 1861 Sir John Robertson's two famous Land Acts were passed. The one relevant for present purposes is the Crown Lands Alienation Act of 1861. This Act defined Crown lands as "all Lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple". It laid down the conditions and the manner in which such lands would be alienated in the future - and provided that in the future reservations and dedications for public purposes might be made by the Governor-in-Council by notification in the Gazette, to be followed later by grants for such purposes. The provisions of ss. 4 and 5 concerning reservations and dedications seem to overlap; and quite early there were some differences of judicial opinion as to their effect. In general, s. 4 seems to have been designed to provide mainly for temporary reservations from sale, either pending survey or for some other reason; and s. 5 to provide for permanent dedications for public purposes, including "public health, recreation, convenience or enjoyment" see Ricketson v. Barbour (1877) Knox 72; Atkinson v. Barling (1879) 2 SCR (NS) 39, where Manning J (1879) 2 SCR (NS) 217, at p 42 thought "reserved" and "dedicated" were used synonymously; Ex parte Penniment (1891) 12 LR (NSW) 68 Temporary reservations might be revoked by the Governor-in-Council; but by s. 5 "all lands which have hitherto been or shall hereafter be permanently reserved for any of the public purposes aforesaid shall be deemed to be set apart, attached and dedicated accordingly and every conveyance or alienation thereof except for the purpose for which such reservation shall have been made shall be absolutely void, as well against Her Majesty as all other persons whomsoever". This seeming immutability and perpetuity would however always yield to a statute. And by the Crown Lands Act of 1884, s. 105, power was given to the Governor (after 1913 to the Minister) by the prescribed procedure to revoke earlier dedications: see New South Wales v. The Commonwealth (the Garden Island Case [1926] HCA 23; (1926) 38 CLR 74) (at p77)

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20. It is time to turn to the facts. From the findings made by Hardie J., as set out in the stated case, and from an examination of the original documents referred to there and in his judgment and from certain other material to be mentioned, the following appear to be the relevant facts stated chronologically. In December 1832 a group of citizens, which included Sir John Jamieson, Colonel Snodgrass and Edward Deas Thomson, submitted a memorial to Governor Bourke requesting him to set aside ground for a racecourse. The memorial stated that "the present Race Course in the vicinity of Sydney, at no time a good one, having been during the late rainy season rendered perfectly unfit for the purpose contemplated, races held there in April have been of necessity transferred to Parramatta to the great inconvenience and injury of parties resident in this neighbourhood". The historical background of this desire for a new course seems to have been that the Governor's Club, as it was generally known, had been without a satisfactory course of its own ever since its formation after the well-known episode when Governor Darling had withdrawn his patronage from the old Turf Club, considering himself to have been insulted by events at a dinner. The memorialists of 1832 suggested that "an eligible allotment might be found among the vacant Crown lands at a convenient distance from Sydney", and solicited the Governor to instruct the Surveyor-General "to mark out a reserve" for the purpose. Sir Thomas (then Major) Mitchell, the Surveyor-General, reported in January 1833 that the land desired had been pointed out to him; that there was no objection to its reservation, and that he "would on the contrary recommend the reservation of the ground in question for this kind of public amusement and recreation". The recommendation was approved by the Governor. The area in question, about two hundred and two acres, was thereafter marked on various maps and plans in the office of the Surveyor-General as "Reserve for Sydney Race Course". In January 1833 Colonel Snodgrass requested that the Governor should make available twenty convict labourers for the purpose of forming the racecourse which, he wrote, "His Excellency had been pleased to sanction as a reserve for the amusement of the public and to encourage improvement in the breed of horses". This request was approved. (at p81)

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21. No formal notification of the reserve was necessary at that date. The Surveyor-General had marked the land as a reserve. It was not available to be taken up by a private settler. Moreover, although it was not proved in this case, it is a fact that the matter had had some publicity, for in the Sydney Herald of 28th January 1833, under the heading "New Race Course", there is a reference to the Governor having "been pleased to sanction a reserve . . . for a new racecourse, the want of which has been much felt, and also to authorise the loan of twenty labourers to assist in its formation"; and subscriptions were invited from those who would "contribute towards a sport at once so national and so conducive to the improvement of Australian horses". It seems that the course was first used in 1833, but not regularly thereafter; and that after a time it was abandoned: see Australian Encyclopedia 1st ed. "Racing"; and 2nd ed. "Horse-Racing". There is a reference to the land in the proceedings and report of the select committee of the Legislative Council on the reservation of lands for public recreation in 1854. But this document was not in evidence at the trial and its admissibility need not be considered. It contains nothing inconsistent with the findings made by the learned trial judge. The land, "two hundred and two acres near Lachlan Swamp and formerly appropriated as a racecourse", was apparently no longer in use as a racecourse in 1854. The Australian Jockey Club had been formed in 1842, but its meetings were held at Homebush (Australian Encyclopedia). In 1858, however, a new chapter in the history of Randwick racecourse began. For, to return to the documents given in evidence, the Australian Jockey Club in that year applied to the government for a grant of the land to be issued to Edward Deas Thomson, Richard Jones and Alfred Cheeke as trustees for the club. The grant was sought because it was said that "the land in question cannot be made available for the purposes of a Race Course except at a very considerable expense" and that the club "unless assured of permanent tenure of the land for the exclusive object in view would not be justified in incurring this large expenditure nor would there be any probability of their being able to raise the necessary funds". The application went before the Executive Council. A notation on the paper, signed by the Clerk of the Council and bearing date 14th February 1859, states that "the Executive Council having deliberated, express their approval of the proposed appropriation of the Land to the object of its reservation, and advise . . . that it be granted upon the usual terms to the Honorable Edward Deas Thomson C.B., The Honourable Richard Jones M.P. and the Honourable William Bede Dalley M.P. (Alfred Cheeke being about to leave the Colony) as Trustees to be appropriated to the purposes of a Public Race Course". The document is endorsed with the Governor's approval and bears a note that it was forwarded to the Surveyor-General to be acted on accordingly. This was because it was proposed to re-align the boundaries of the area, as the Randwick Road had been formed and had cut off some twenty acres of the original reservation. Perhaps because of the necessity of a survey, nothing further is shown to have occurred until the publication in the Government Gazette of 16th May 1860 of a notice issued from the Surveyor-General's Office describing by metes and bounds "a portion of land appropriated as a Racecourse for the City of Sydney" and stating that "at the expiration of one month from this date the Deed of grant of the same will be executed in favour of the approved Trustees". According to the Australian Encyclopedia the Australian Jockey Club commenced using the course in 1860, having held its last meeting at Homebush in 1859. But the promised grant was not issued until 1863. The delay may have been the result of political circumstances, ministerial changes, and the current controversies about land reform. Whatever the reason, the grant was made after the Crown Lands Alienation Act of 1861 had come into operation. (at p83)

[45]

22. The events which occurred before the grant have been set out at length, because both parties attached importance to them. But they really establish nothing decisive for this case. The land was at an early date reserved from sale and set apart for the purpose of a racecourse. The reservation was regarded as revocable or alterable by the Crown; and indeed there was a partial revocation and alteration when the new area of twenty acres was substituted for the area cut off by the road. The persons interested in the project had always, as had the Surveyor-General, described the reserve as for amusement, recreation and enjoyment, probably having in mind one of the purposes for which the Governor was directed to reserve land. But the Governor was the judge of what land should be reserved, for what purposes and for what time: see United Sir William Don Gold Mining Co. v. Koh-i-noor Gold Mining Co. Ltd. (1866) 3 WW & A 'B M 63 The Waste Lands Act of 1842 required that grants to private settlers should be made only upon sale. It left the Governor to decide how any land reserved from sale should be disposed of and dedicated to the purpose for which it had been reserved. Nothing had occurred before 1859 which constituted a dedication of the land, in any sense in which that expression could properly have been used. The early reservation from sale on which the respondents placed some reliance cannot avail them, for land which is reserved from sale is Crown land which has not been granted. Once granted it is no longer subject to the Crown Lands Acts unless it be resumed or revert to the Crown. The subject land was thus after 1863 no longer "reserved from sale" within the meaning of that phrase in the Local Government Act. Mr. Wallace was on firmer ground when he relied upon a dedication in or after 1859. To this Mr. Bowen said that before 1863 there was no dedication - that the events of 1859 and 1860 were inchoate only. And the deed of 1863 he said could not be a dedication, because the Crown Lands Alienation Act of 1861 had come into operation; and s. 3 provided that Crown lands might be lawfully granted in fee simple or dedicated to any public purpose under and subject to the provisions of the Act and not otherwise. Section 5 provided that reservations and dedications for public purposes might be made by notice published in the Gazette and that upon such notice being published such lands should become and be reserved or dedicated accordingly and might at any time thereafter be granted for such purposes in fee simple. We were told that a notice of dedication was not published in the Gazette before the deed of grant. Therefore, said Mr. Bowen, there was no lawful dedication. But this argument - the logical conclusion of which would be that the grant when it was made by the Crown was contrary to law and void or voidable - runs at once into difficulties. First the Act of 1861, because of its definition of Crown lands, did not apply at all to any land which at its commencement had already been dedicated, granted or lawfully contracted to be granted. And it seems that the racecourse land could properly be said in 1859 to have been both dedicated and contracted to be granted pursuant to such dedication in the sense of the words in the Act of 1861. The Governor, or Governor-General as Sir William Denison properly was, had formally agreed in Council to a grant of it to trustees for the purposes of a public racecourse. This was at a time when there was still no statutory description or restriction of the public purposes for which land might be granted. It could perhaps be suggested that until the grant actually issued, there was no legal bar to the government revoking its approval. But after 1859 that cannot be considered to have been a serious possibility. It would have been a breach by the Crown of a promise on the faith of which the club had entered upon the land and used it - a promise which the club had sought before it was prepared to spend money on improving the land as a racecourse. That a formal grant would issue in due course must have been taken to be a foregone conclusion when the Act of 1861 came into operation. And that introduces the second difficulty in Mr. Bowen's argument. The Act of 1861 (by s. 2) was not to prejudice or affect anything already lawfully done or commenced or contracted to be done under the Orders in Council and Regulations under 5 & 6 Vict. c. 36; and this would appear to have preserved the effect of anything done or commenced to be done by the Governor under the powers recognized by s. 3 of that Act. Furthermore, the precise effect of the Act of 1861 in relation to matters existing at its commencement, and the extent to which the procedure under it was mandatory, were subjects on which there was some difference of judicial opinion shortly after its enactment (Joachim v. O'Shanassy (1877) Knox 98, 118; Ex parte Nesbitt (1874) unreported except in the Sydney Morning Herald and in Appendix to Watkins, Crown Lands Acts; Mate v. Nugent (1869) 8 SCR 246; compare Turner v. Walsh (1881) LR 6 App Cas 636; Bull v. Attorney-General for New South Wales [1913] HCA 60; (1913) 17 CLR 370; (1916) AC 564; (1916) 22 CLR 333) (at p85)

[49]

that is to say it does not determine the meaning, in their context, of the terms "public health, recreation, enjoyment or other public purposes of a like nature". Whether there was a dedication for those purposes must be determined by what the deed actually effected, not by the manner in which it describes its purpose. Turning then to its operative parts: It granted the land to the then trustees, the predecessors of the respondents, upon trust to permit and suffer the land or any part thereof to be used by such persons, clubs or associations, at such times and upon such terms and conditions, as the trustees should think fit for any of the purposes described as follows:- "Firstly: As a Race-course upon which horse races may be run under the direction of The Australian Jockey Club or of any other club or association now existing or which may hereafter be founded for the purpose of horse-racing - Secondly: as a Training ground for the purpose of training horses intended to race and also for the erection of training stables and temporary dwellings for the use of the persons engaged in training race horses. - Thirdly: As a Cricket ground or place at and upon which the game of cricket may be played. - Fourthly: For the erection of Butts or Targets for rifle shooting. - Fifthly: And for any other public amusement or purpose which His Excellency the Governor of our said Colony for the time being with the advice of the Executive Council thereof may from time to time declare to be a public amusement or purpose for which the said lands or any part thereof shall or may be used". The deed went on to empower the trustees to lease the land for a term of seven years to the Australian Jockey Club or any other club or association formed for the purposes of horse-racing or promoting or engaging in any other public amusement or purpose for which the lands might be used. The intention was, of course, that the land should be used by the Australian Jockey Club as its racecourse. The other purposes mentioned, except use as a training ground, may never have been in serious contemplation. They seem almost a disguise. There is no hint of them in the 1859 resolution of the Executive Council or in any of the earlier documents or events which were given in evidence. The reason for their introduction does not appear. It may have been to ensure an effective dedication of the land to public purposes in the event of the Australian Jockey Club not continuing to lease the ground. Whatever the reason for the form of the grant, the land has ever since been used as it was expected it would be as the main racecourse of the Australian Jockey Club. (at p87)

[55]

31. It is unnecessary to examine in any detail the evidence about the control and management of Randwick racecourse and the special privileges enjoyed there by members of the Australian Jockey Club. All the relevant facts - and some which seem to be irrelevant, but which the parties thought important - were found by Hardie J. and are set out or referred to by him in the stated case. Important matters are: To become a member of the club a candidate must be proposed and seconded by two members and be elected by the committee. The number of members is limited to seventeen hundred. On race days members of the club and members of the general public pay the same sum, at present two shillings, to enter the course. Thereafter members of the public must pay further sums to enter parts of the course, the Paddock and the Leger. Club members, however, may without further payment enter all parts to which the public can gain admittance by payment; and certain stands, lawns and other areas are reserved for the sole use of club members and their ladies, and special facilities are there provided for them. Except on race days, no one, other than a member, officer or employee of the club or persons having business with horses in training, may without permission enter any part of the land (by-law XVII). The club is a voluntary society. Its constitution is in rules which are alterable by a majority vote of the members. It is empowered by the Act of 1873 to make by-laws for regulating all matters concerning or connected with the racecourse and its management and the admission thereto and expulsion therefrom of members of the club or any other persons, and the rates or charges to be paid for admission. The property of the club is by the Act vested in the chairman in trust for the club. There appears to be no provision for the disposal of the property of the club in the event of its dissolution; but presumably in law the members for the time being would be beneficially entitled to it. The rules provide that "the profits and other income of the club shall be applied to the promotion of the objects thereof, and no dividends shall be paid to the members of the Club". The importance of this rule is, however, diminished when it is remembered that it is alterable at any time by a majority of the members; and that the club's objects, which may be taken to be the furtherance of horse-racing, are not confined to the conduct of race meetings at Randwick. In fact, it conducts a big business enterprise; and one of the assets of the business is its lease of Randwick racecourse at a peppercorn rent. The course is regularly used for training, and the club gets part of its revenue from trainers licensed to use the course. In many years the club's activities have yielded very large profits. It has considerable accumulated funds. It pays income tax on its profits. It is not obliged to devote the profits from Randwick to the maintenance and improvement of that course. It can apply them as it thinks fit for the promotion of its objects. It is the owner in fee simple of another racecourse, Warwick Farm, and of other properties, some of them revenue producing or potentially so. It can, if it wishes to, use revenue derived from the conduct of meetings on its leasehold Randwick course for the improvement of its freehold course at Warwick Farm. (at p90)

[60]

36. In Sydney Municipal Council v. Attorney-General (Milroy's Case) (1894) AC 444 the land in question was the Sydney Showground, part of what was then the Sydney Common, which it was held by the Privy Council had in the events which had occurred become dedicated for public recreation. The Municipal Council of Sydney was the trustee of the land under the Public Parks Act. It was held that, consistently with the purposes of the dedication, it might lawfully allow the Agricultural Society to occupy the land and charge for admission. In the course of their judgment their Lordships used the words quoted by Owen J. in this case (1959) 4 LGRA, at p 113: "There is a very general liking for animal shows and races, and a general willingness that portions of public ground should be taken for such things, and money paid for good positions to enjoy them, inasmuch as without these payments the enterprises could not be maintained, and the enjoyment derived by the public from the land dedicated to their recreation would be less and not greater. By the evidence of Webster it appears that the inhabitants of Sydney are not behind the rest of the world in their readiness to see sights and to pay for them. Their Lordships think it impossible to say that the lands are not being used and enjoyed with due regard for the rights and interests of the public" (1894) AC, at p 455 This passage really establishes no more than it is not necessarily incompatible with the use of a place for public recreation that members of the public have to pay for admission to see races or shows conducted there. That case was not a rating case; but in Municipal Council of Sydney v. Royal Agricultural Society of New South Wales [1905] HCA 56; (1905) 3 CLR 298, the question was whether the same land was ratable. It was held that it was not, at the date of that case, "vested in trustees for public recreation, health or enjoyment" and therefore was not exempt from rates. This was because revenue derived from the occupation and use of the land by the society could lawfully be applied to any purpose of the society and had not necessarily to be devoted to the improvement of the land or to carrying on the operations of the society on the land; and furthermore the members of the society had certain privileges beyond those enjoyed by the general public. In Street v. The Municipal Council of Ballina (1910) 27 WN (NSW) 126 a racecourse vested in trustees upon trusts similar to those in question here was held by the Supreme Court, Pring and Sly JJ., not to be a "public reserve" as defined by the Local Government Act then in force. (at p93)

[61]

37. Those decisions all tell in the appellant's favour. It was, however, thought by the majority of the Full Court that their authority had been diminished by the decision in Spain's Case (Municipal Council of Mosman v. Spain) (1929) 29 S.R. (N.S.W.) 492; 46 W.N. 174. But, with respect, that is not so. The decision in Spain's Case (1929) 29 SR (NSW) 492; 46 WN 174 was clearly right; but part of the judgment of Ferguson A.C.J. has sometimes caused a difficulty. As the word "solely" does appear in some paragraphs of s. 132(1), and at the date of Spain's Case (1929) 29 SR (NSW) 492; 46 WN 174 appeared in others (from some of which it was later removed by amendment), his Honour said the word was not to be taken as implied in the exemption of public reserves, where it did not appear. And he pointed out that Blackwood's Case (1877) 2 App Cas 574 was distinguishable in so far as it was based on the importation by implication of the word "solely". But the real ground of the decision in Spain's Case (1929) 29 SR (NSW) 492; 46 WN 174 was that Taronga Zoological Gardens were, as his Honour said, in fact used for a public reserve, and the circumstances relied upon to exclude the exemption were not matters incompatible with the land being a public reserve. The allusion to the absence of the word "solely" has led to a misapprehension, which the argument for the respondents here revealed. The words "exclusively" and "solely" are familiar in fiscal and rating law. Where an exemption from rating depends upon the use of land exclusively for a particular stated purpose, then the use must be for that purpose only (Nunawading Shire v. Adult Deaf and Dumb Society of Victoria [1921] HCA 6; (1921) 29 CLR 98) The question arises, for example, when part of the subject land is used for the relevant purpose and another part for a different purpose (Sisters of Mercy Property Association v. Newtown and Chilwell Corporation [1944] HCA 30; (1944) 69 CLR 369) The presence of "exclusively", "solely", or "only" always adds emphasis; and is not to be disregarded (Reg. v. Cockburn (1852) 16 QB 480, at p 491 [1852] EngR 117; (117 ER 962, at p 967)) When such words are present, it is a question of fact whether the land is being used for any purpose outside the stipulated purpose (cf. Trustees of Victorian Rifle Association v. Mayor of Williamstown (1890) 16 VLR 251; Down v Attorney-General of Queensland [1905] HCA 15; (1905) 2 CLR 639 As Kitto J said in Lloyd v. Federal Commissioner of Taxation (1955) [1955] HCA 71; 93 CLR 645, at p 671, such words confine the use of the property to the purpose stipulated and prevent any use of it for any purpose, however minor in importance, which is collateral or independent, as distinguished from incidental to the stipulated use. Even without such words, an exemption from rating based upon use or occupation for a particular purpose or in a particular manner can only apply when the property is so used that it can properly be described as used for that purpose or in that manner, any other user being merely incidental, or at least not inconsistent with such main user. The facts in Trustees of Wentworth Park v. Glebe Municipal Council (1949) 17 LGR 146 were different from those of this case; and we are not concerned with the conclusion reached in that case. But the question was the same as here; and the test was aptly stated by Sugerman J. as "The question which I must ask myself . . . is whether . . . it may justly be described as 'land which is used for public recreation'" (1949) 17 LGR, at p 149 For the resolution of the question thus expressed, Blackwood's Case (1877) 2 App Cas 574 and Dangar's Case (1898) 15 WN (NSW) 37 are still in point. In the former case their Lordships' reference to land "used solely for public purposes without any beneficial occupation by individuals" simply pointed to contrasting uses. If land can justly be described as used for private benefit, then it cannot be predicated of it that it is, for the purposes of exemption from rating, used for public purposes. The introduction of the word "solely" only puts this in a clear light. In Dangar's Case (1898) 15 WN (NSW) 37 the question was not the purposes for which the land was used but the trusts on which it was held by the trustees - the land and the trusts being those with which we are here concerned. The Supreme Court there took the view that not all the purposes for which the trustees could lawfully permit the land to be used were public purposes - a training establishment at all events was not - and therefore the land was not vested in trustees for public purposes. This conclusion, which was clearly right, was expressed to be arrived at by reading in the words "solely" or "exclusively". But this verbal approach was unnecessary. A trust under which the trust property might, at the discretion of the trustees, be wholly applied to a non-public purpose cannot properly be called a trust for public purposes - that is only to say that a trust cannot be called a charitable trust if the trustees could, without breach of trust, apply the trust property to non-charitable purposes. So expressed the proposition is familiar law. Where the question is not whether there was a user for public purposes generally or a trust for public purposes generally, but whether or not property is being put to some particular use, as for a public library or a public reserve or a church, then the presence or absence of the word "solely" in the description of such particular use may have greater significance. But it does not change the meaning of, for example, public reserve, nor does it change what has to occur for land to be used as a public reserve. (at p95)

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54 (30 November 1959)

Parties

Legislation Cited (21)

Cases Cited (12)