Da Costa Samaritan Fund (Incorporation of Trustees) Act 1953

Statutory corporate trust: The Da Costa Samaritan Fund Trust is not a company or a statutory authority in the usual sense. It is a body corporate created by a private Act for a charitable purpose. It holds property for the benefit of convalescent patients, but it is not a government department. The concept of a body corporate with perpetual succession under s 3(2) means the Trust continues regardless of changes in trusteeship, unlike a traditional unincorporated trust where legal title vests in individual trustees.

Convalescent patients: This is the defined beneficiary class. The funds are to be applied for the benefit of convalescent patients of certain hospitals. "Convalescent" means those recovering from illness or injury, not acute care patients. The validation provision (s 19A) allows applications that also incidentally benefit other persons, including convalescent patients or persons suffering illness or injury who are not convalescent patients of a relevant hospital, provided the trustees opine the application was substantially for the benefit of the qualifying class.

Specified and proclaimed hospitals: Initially only Royal Adelaide Hospital and The Queen Elizabeth Hospital were named. Section 19(2)(c) allows the Governor, on the recommendation of the trustees, to proclaim any incorporated hospital under the South Australian Health Commission Act 1976 (now the SA Health Act) to be a hospital to which s 19 applies. This gives the Trust a role in expanding the class of potential beneficiaries, but the ultimate decision rests with the Governor. The Trust cannot unilaterally add hospitals.

Governor oversight: The Governor (effectively the responsible minister) has several gatekeeping powers: approval of additional trustees (s 4(3)), approval of appointments to fill vacancies (s 6(1)), power to appoint if vacancy persists (s 6(2)), power to remove trustees (s 5(2)), power to vary or revoke hospital proclamations (s 19(3)), and receipt of auditor’s report and certificate (s 14(3)). This is a notable degree of state influence over a private charity, though the Trust manages its own day-to-day operations.

Trust deed continuity: The Act defines “the Trust Deed” as the 1898 indenture (s 2). Section 21 gives the Trust the same powers to manage or let land as the original trustees had under that deed. So the original deed’s management powers are incorporated by reference, but the beneficial trusts under the deed are replaced by s 19 of the Act. The Act does not reproduce the original trust purposes but overrides them.

Validation and retroactivity: Section 19A(1) deems that pre-1969 applications of money that were substantially for the benefit of convalescent patients at Royal Adelaide Hospital were never invalid merely because a non-qualifying person also benefited. Section 19A(2) similarly protects post-1969 applications. This shields the trustees from liability for breach of trust if they had applied funds in a way that technically strayed outside the strict beneficiary class, provided the application was substantially for the correct class and the trustees so opined.

Remuneration concept: Trustees are entitled to remuneration from trust property: the sum of sixty pounds per annum or such other sum as the Supreme Court may allow, divided as agreed or equally (s 12(1)). They may also apply to the Supreme Court for commission as if they were unincorporated trustees (s 12(2)). This is unusual in general trust law, where trustees traditionally act without remuneration unless expressly authorised. Incorporation does not change that; the Act specifically authorises it.

The trustees: Named individuals and their successors. The Act imposes duties on them as a body. They are personally affected by the removal power under s 5(2) and can be held to account for breaches of trust, though the validation provision provides retrospective relief. They receive remuneration as fixed by the Act or the Supreme Court. They can be required to appear before the Supreme Court for advice.

Convalescent patients of Royal Adelaide Hospital, The Queen Elizabeth Hospital, and any proclaimed hospital: These are the intended beneficiaries. They are not given enforceable rights under the Act; the Trust has discretion to apply funds as it thinks fit (s 19(1)(b)). They may apply for assistance under rules made by the Trust (s 26(1)(a)). Their practical benefit depends on the Trust’s policies and income.

Hospitals: Those declared under s 19(2) or proclaimed under s 19(3). They are affected indirectly as recipients of charitable distributions on behalf of their convalescent patients. The Trust could, for example, fund convalescent care facilities or equipment. The hospitals themselves are not trustees and have no claim on the funds.

The Governor (state executive): Exercises approval and removal powers. This introduces a political element into a private charity. The Governor has no fiduciary duty to the Trust but acts on ministerial advice. The Governor can remove a trustee for “other cause deemed sufficient” (s 5(2)), which is a broad discretion not subject to judicial review on the merits.

The Chief Secretary (now the Minister responsible): Approves the auditor (s 14(1)) and receives the auditor’s report and certificate (s 14(3)). The Chief Secretary can presumably take no further action; the Act does not give the Minister power to direct the Trust or remove trustees (that power rests with the Governor). This oversight role is largely passive, though the existence of the auditor’s report to government means the state can monitor the Trust’s finances.

Auditor: Must be a registered company auditor under the Companies Act 1962 (a reference now to the Corporations Act). The auditor has duties to report to the Chief Secretary and to certify inspection of title documents and securities (s 14(3)). This imposes a stricter regime than many private charities, which typically report only to the board.

Supreme Court of South Australia: Has jurisdiction to determine trustee remuneration (s 12), to give advice and directions to the Trust on management and construction of documents (s 25), and presumably to enforce the trusts (though not expressly stated). The Act does not oust the ordinary equitable jurisdiction of the court, so beneficiaries (convalescent patients) could potentially sue for breach of trust, though as a class they lack standing.

General public: Minimal direct effect. The Act removes the property from the general law of unincorporated trusts and places it in a corporate vehicle. There is no public right to information beyond the auditor’s report to the Chief Secretary, which is not stated to be a public record. The Trust is not subject to freedom of information laws.

Duty to hold and apply property on trust: Section 19(1) creates a binding trust. The Trust must stand possessed of trust property to pay management expenses from income (s 19(1)(a)) and apply the balance of income (and any money representing income) for the benefit of convalescent patients of specified hospitals (s 19(1)(b)). The trust is a fixed charitable trust for a class, not a discretionary trust for named individuals, but the Trust has a wide discretion as to “the manner” of application. The duty is to apply the money; the Trust cannot accumulate indefinitely.

Duty to keep proper accounts: Section 13 obliges the Trust to keep “proper books and accounts” and prepare annual income/expenditure statements and a balance sheet. This is a conventional accounting obligation.

Duty to submit to audit: Section 14 mandates an annual audit by a registered company auditor approved by the Chief Secretary. The Trust and its officers must make books and accounts available and provide reasonable facilities and information (s 14(2)). The auditor must report to the Chief Secretary and give a certificate that documents of title and securities have been inspected (s 14(3)). This is a transparency requirement, though the report goes only to the government, not to beneficiaries.

Duty to bank income promptly: Section 20 requires income to be paid as soon as convenient to the credit of the Trust at an ADI in Adelaide. This prevents trustees from holding cash at risk.

Right to remuneration: Section 12(1) entitles trustees to £60 per annum each, or other sum allowed by the Supreme Court. This is a right, not a mere permission. The Trust must pay from trust property. Trustees may also apply to the Supreme Court for commission (s 12(2)), which is typical of professional trustees.

Right to make rules: Section 26 allows the Trust to make rules for management, including application procedures by patients, officer duties, and meeting procedures. Rules must be under the common seal and are subject to s 38 of the Acts Interpretation Act 1915, which probably requires tabling in Parliament or gazettal. This rule-making power is quasi-legislative but applies only internally.

Right to invest and vary investments: Sections 22 and 23 allow the Trust to vary investments and to invest income not immediately required in any investment authorised by law. Section 23(2) allows sale of investments bought from income and treating proceeds as income, preserving liquidity.

Right to accept gifts: Section 24 allows the Trust to accept gifts, which then fall under the same trusts and powers. This enables growth of the corpus.

Right to apply to Supreme Court for advice: Section 25 gives the Trust and any trustee the right to seek court guidance on management, administration, or construction of any deed or document. This protects trustees from liability for acting in accordance with court direction.

Right to manage land: Section 21 confers the same powers that the original trustees had under the Trust Deed to manage or let land. This is a continuation power, not a new power. It means the Trust can deal with land (likely property originally settled) as the 1898 deed permitted.

The Act contains no express penalty provisions, fines, or criminal offences. Enforcement is through general trust law, the Governor’s removal power, and the Supreme Court’s supervisory jurisdiction.

Removal by Governor: Section 5(2) allows the Governor to remove a trustee for “neglect of duty, incapacity to perform his duties, dishonourable conduct, or other cause deemed sufficient by the Governor.” This is a broad executive power. The phrase “other cause deemed sufficient” gives the Governor an unguided discretion. A trustee removed has no statutory right to a hearing or appeal, though judicial review for jurisdictional error or bad faith may be available. This power is a penalty in effect: a trustee loses office and future remuneration. It can be used to enforce compliance without court proceedings.

Vacancy for non-attendance: Section 5(1)(d) declares a vacancy if a trustee absents himself without permission from four consecutive meetings and is declared by resolution to have forfeited his seat. This is self enforcement by the Trust: the board can remove an inactive trustee by resolution, but the Governor must still approve the replacement appointment (s 6(1)). No further penalty attaches.

Breach of trust: The trusts under s 19 are enforceable in equity. If the Trust applies funds for non-beneficiaries or fails to apply income for the required purpose, beneficiaries (or the Attorney General as protector of charities) could sue for an account and restitution. The validation provision (s 19A) gives a defence if the application was substantially for the correct class and the trustees so opined. This reduces the risk of liability for incidental errors.

Auditor’s report: The auditor must report annually to the Chief Secretary (s 14(3)). If the auditor notes irregularities, the Chief Secretary may bring the matter to the Governor, who could remove trustees. The auditor’s certificate of inspection of title documents and securities (s 14(3)(b)) creates a deterrent against misappropriation of trust property, as the auditor must satisfy themselves that the balance sheet contains a true statement of property held.

Misapplication of funds: Section 19(1)(a) requires payment of “expenses of management and other expenditure lawfully incurred.” Any unauthorised disbursement could be a breach. The Trust has no power to apply income for non-qualifying purposes, unless it falls within the validation provision’s substantial benefit test.

No personal liability: The Act does not impose personal liability on trustees for acts done in good faith. There is no indemnity clause, but general trust law indemnifies a trustee against liabilities properly incurred. The Trust as a body corporate is liable on contracts (s 17). Trustees who act within authority are not personally liable unless they breach trust.

Offences: None are created. The Act is purely facilitative and regulatory.

Trustee Act 1936 (SA): This Act does not expressly exclude the general law of trusts, but s 25 allows the Trust to apply to the Supreme Court for advice “in like manner as any unincorporated trustee.” The Supreme Court would likely apply the Trustee Act provisions on investment, delegation, and powers, except where this Act provides its own rules. Section 22 authorises varying investments, which is consistent with modern trustee powers. Section 23 allows investment of income in “any investment or security authorised by law,” which refers to the Trustee Act’s authorised investments at the time (now the statutory power of investment under the Trustee Act as amended). The Trust’s investment powers are supplementary, not exclusive.

Acts Interpretation Act 1915 (SA): Section 38 of that Act applies to rules made under s 26 (s 26(4)). Section 38 likely requires rules to be laid before Parliament, subject to disallowance, or to be published in the Gazette. This means the Trust’s internal rules have a quasi-statutory character and may be subject to parliamentary scrutiny. This is unusual for a private charity and imposes a procedural burden.

Companies Act 1962 (SA): The auditor must be a “registered company auditor within the meaning of the Companies Act 1962” (s 14(1)). That Act has been superseded by the Corporations Act 2001 (Cth), but the reference is to a category of persons who are registered company auditors under corporations law. This imports the professional standards and regulatory oversight of company auditors into a charitable trust context. The Chief Secretary must approve the auditor, adding a layer of state vetting.

South Australian Health Commission Act 1976: Section 19(3) requires that any hospital proclaimed under s 19(2)(c) must be “an incorporated hospital within the meaning of the South Australian Health Commission Act 1976.” This Act has been superseded by the SA Health Act, but the reference means the hospital must be a statutory corporation or incorporated entity under health legislation. This prevents the Trust from distributing to unincorporated hospitals or private hospitals not covered by that definition.

Stamp Duties Act 1923 (SA): Section 18(2) exempts the transfer of property from the former trustees to the Trust from stamp duty. This is a specific carve-out from general duties law. Without this, the transfer could attract ad valorem duty. The exemption reduces transaction costs.

General trust law: The Act does not codify all trust rules. The equitable duties of loyalty, impartiality, and proper investment apply unless inconsistent. The validation provision (s 19A) modifies the duty to apply funds strictly for the stated class, allowing incidental benefits to others if substantially for the class. This is a statutory override of trust law.

Financial Sector Reform (South Australia) Act 1999: Section 20 was amended by this Act to replace a reference to “bank” with “ADI” (authorised deposit-taking institution). This brings the banking requirement in line with Commonwealth financial sector reforms, allowing income to be deposited with any ADI, not just a bank.

Charitable trusts legislation: South Australia has no general Charities Act comparable to some jurisdictions. The Act is self-contained, but the Trust is a charitable trust for the relief of sickness or disability. The Supreme Court’s jurisdiction over charities includes cy-près powers if the trust fails, which could be invoked if the hospitals cease to exist.

The Act was passed in 1953 and has been amended four times.

Da Costa Samaritan Fund (Incorporation of Trustees) Act Amendment Act 1969 (No 3 of 1969): This was a significant amendment. It substituted a new s 19, replacing the original trust provisions. The original s 19 presumably limited benefits to the Royal Adelaide Hospital only; the amended s 19 added The Queen Elizabeth Hospital and enabled future proclamations of other hospitals. It also inserted s 19A (validation) to retrospectively protect past applications of money that incidentally benefited non-qualifying persons. It amended s 14(1) (auditor requirement) and s 26(1) (rule-making power). The assent and commencement were 27 February 1969. The amendment expanded the beneficiary base from one hospital to potentially many, increasing the reach of the trust.

Da Costa Samaritan Fund (Incorporation of Trustees) Act Amendment Act 1990 (No 5 of 1990): This amended s 19(3). The original subsection required the Governor to declare hospitals on the recommendation of the trustees, but the 1990 amendment substituted a new version that also allowed the Governor to vary or revoke a proclamation. It also changed the reference from “incorporated hospital within the meaning of the Hospitals Act 1934” to “incorporated hospital within the meaning of the South Australian Health Commission Act 1976.” This reflects the consolidation of hospital governance into the health commission. Commencement was 26 July 1990.

Financial Sector Reform (South Australia) Act 1999 (No 33 of 1999): This Act made a single amendment to s 20, replacing “bank” with “ADI” as part of harmonisation with Commonwealth financial sector reforms following the Wallis Inquiry. The change recognises that credit unions and building societies (ADIs) can also hold trust income. Commencement 1 July 1999.

Statute Law Revision Act 2003 (No 44 of 2003): This made minor textual amendments: deleted the headings preceding s 3 and s 18, and redesignated subsections in s 19(2) from (i)-(iii) to (a)-(c). These are purely formal changes, no substantive effect. Commencement 24 November 2003.

The Act is now relatively stable, with no further amendments in over twenty years. The legislative history indicates the trust has evolved from a single hospital focus to a broader potential reach, with increased state oversight through Governor appointments and the rule-making power.

The Act itself contains no record of litigation, and the legislative history does not reference any court cases. The validation provision s 19A suggests that prior to 1969 there was concern that trust funds had been applied in a manner that might be challenged for benefiting persons other than convalescent patients of the Royal Adelaide Hospital. The absence of reported litigation may indicate the validation succeeded in avoiding disputes.

The right to apply to the Supreme Court for advice under s 25 has likely been used, but no public judgments are cited in the legislation. Trustees of private charities often seek advice without public controversy.

Given the small scale of this trust and the specific beneficiary class, significant litigation is improbable. The Act provides a clear framework that reduces the risk of disputes. The Governor’s removal power is a potential source of challenge, but no reported cases exist.

Governor’s removal power is extremely broad: Section 5(2) allows removal for “other cause deemed sufficient by the Governor.” This is not defined, and there is no requirement for a hearing or natural justice beyond general administrative law. A trustee could be removed for reasons unrelated to trust administration, such as political disagreement or personal animus of a minister. This is a significant risk for trustees.

Only three trustees needed for a quorum applies only if there are more than three: Section 7(1) states “A majority of the trustees shall form a quorum.” If there are three trustees, two are needed for quorum. If there are four, two also constitute a majority, but note s 7(3): if only two trustees are present and voting ties, the matter is postponed to a meeting with at least three trustees. With a board of three, a tied vote means deferral. This can cause deadlock if only two attend.

No minimum number of trustees if vacancy not filled: Section 6(3) provides that if there are at least three surviving or continuing trustees, it is not necessary to fill a vacancy. So the board could operate with three indefinitely, but cannot fall below three (s 4(1)). If a trustee dies and only two remain, the vacancy must be filled within three months or the Governor appoints (s 6(2)). The Trust cannot function with only two trustees, which could create urgency.

Validation section has a subjective test: Section 19A uses the phrase “in the opinion of the trustees, applied by them substantially for the benefit.” If the trustees form an opinion in good faith, the application is deemed valid even if a court might have a different view. However, if they apply funds for clearly non-qualifying purposes (e.g., administrative overhead for a hospital not proclaimed), the validation does not help because it requires that the application was for benefit of convalescent patients of a qualifying hospital. Incidental benefit to others is okay, but the primary purpose must be correct. The trustees must be able to justify their opinion.

Hospital proclamation requires trustee recommendation: The Trust can expand its own beneficiary base by recommending a hospital to the Governor (s 19(3)). But the Governor may refuse, vary, or revoke a proclamation. The Trust cannot unilaterally add hospitals. This limits strategic flexibility.

No power to wind up or distribute corpus: The Act does not deal with dissolution. The trusts are perpetual (s 3(2) gives perpetual succession). If all qualifying hospitals cease to exist, the trust would be subject to cy-près jurisdiction of the Supreme Court. The Act does not provide for a fair distribution of residual assets.

Auditor’s certificate must be personal: Sections 14(3)(b) requires the auditor to give “a certificate signed by his own hand” certifying inspection of title documents and securities. This is more onerous than standard audit reports; the auditor cannot delegate physical inspection to a junior without risk. The auditor must be personally satisfied.

Rules must be under seal, possibly tabled: Section 26(3) requires the common seal on rules, and s 26(4) applies s 38 of the Acts Interpretation Act, which likely requires tabling in Parliament. This means the Trust’s internal procedural rules become public documents and subject to parliamentary disallowance. This is unusual for a private charity and reduces the Trust’s ability to adapt quickly.

Remuneration may be challenged as excessive: Section 12(1) sets a default of £60 (now likely updated by Supreme Court order). Trustees can apply to the Supreme Court for more. If trustees pay themselves without court approval above the default, it could be a breach of trust. The Act does not cap it, but the court retains control.

Banking of income: Section 20 requires payment to an ADI in Adelaide “as soon as is convenient.” This is ambiguous and could lead to delays. It also restricts choice to Adelaide-based ADIs, which excludes online-only banks or national institutions without an Adelaide branch.

A trustee or adviser to the Da Costa Samaritan Fund Trust should take the following steps, grounded in the Act.

1. Ensure proper constitution of trustees.

• Maintain at least three trustees at all times (s 4(1)). If a vacancy arises and there are at least three continuing trustees, it need not be filled (s 6(3)), but it is prudent to fill vacancies promptly to avoid falling below three.
• Any new trustee appointment (whether filling a vacancy or adding an additional trustee) requires written approval of the Governor before it takes effect (s 4(3), s 6(1)). The Trust must submit the appointment to the Governor and await approval. Do not assume a resolution alone suffices.
• Record resignations in writing to the Trust (s 5(1)(b)). Declare forfeiture by resolution if a trustee misses four consecutive meetings without permission (s 5(1)(d)).

2. Comply with meeting procedures.

• Hold meetings as determined by rules (s 9). Quorum is a majority of trustees (s 7(1)). If only three trustees, two needed. If only two trustees present and a tie vote, the matter must be postponed to a meeting with at least three trustees (s 7(3)).
• Elect a chairman (s 8). Record minutes of all proceedings (s 10). The Trust may regulate its own procedure subject to the Act and rules (s 11).

3. Remuneration.

• Pay trustees the amount allowed by the Supreme Court or the default sum. If no Supreme Court order exists, the default is £60 per annum (or equivalent adjusted by court order) divided as agreed or equally (s 12(1)). To pay more, apply to the Supreme Court for commission under s 12(2). Do not exceed without court permission.

4. Financial management.

• Keep proper books and accounts (s 13). Prepare annual income/expenditure statement and balance sheet.
• Appoint an auditor who is a registered company auditor under the Corporations Act and approved by the Chief Secretary (s 14(1)). Provide full access to books and accounts (s 14(2)).
• Ensure the auditor gives an annual report to the Chief Secretary and a personal certificate that documents of title and securities have been inspected and the balance sheet is true (s 14(3)).
• Bank all income as soon as convenient to an ADI in Adelaide (s 20). Use a bank, credit union, or building society that is an ADI with premises in Adelaide.
• Manage land only with the powers under the 1898 Trust Deed (s 21). If unsure, seek legal advice on the original deed.

5. Trust application of funds.

• Apply income (and money representing income) for the benefit of convalescent patients of Royal Adelaide Hospital, The Queen Elizabeth Hospital, or any hospital proclaimed under s 19(3) (s 19(1)(b)). Do not apply for other hospitals unless they are proclaimed, and only after the Trust has recommended the proclamation to the Governor.
• If a distribution incidentally benefits others (e.g., a non-patient visitor), ensure the trustees opine that the application was substantially for the correct class (s 19A). Document that opinion in meeting minutes.
• Pay management expenses from income first (s 19(1)(a)). Keep receipts and records.

6. Investment.

• Invest surplus income in any investments authorised by law (s 23(1)). This includes the statutory power of investment under the Trustee Act. Vary existing investments as needed (s 22). Sell income investments and treat proceeds as income if needed for trust purposes (s 23(2)).
• Accept gifts, but hold them on the same trusts (s 24). Record the gift and ensure it does not impose conditions inconsistent with s 19.

7. Rule-making and documentation.

• Make rules for management, including application procedures for patients, officer duties, and meeting procedure (s 26(1)). Affix the common seal to rules (s 26(3)). Comply with s 38 of the Acts Interpretation Act (likely tabling). Keep rules up to date and accessible to trustees and the auditor.

8. Seek court guidance if uncertain.

• The Trust or any trustee may apply to the Supreme Court for advice, directions, or orders on management, administration, or construction of trust documents (s 25). This is a key protection. If a question arises about investment, beneficiary eligibility, or rule-making, use this provision rather than guess.

9. Record-keeping and reporting.

• Maintain minutes (s 10), accounts (s 13), and auditor’s reports. While the Act does not require public disclosure, the Trust should retain records indefinitely to demonstrate compliance if challenged.

10. Monitor changes to hospitals.

• Periodically check whether the Governor has proclaimed any new hospitals under s 19(3) or revoked any proclamations. Only hospitals currently proclaimed qualify. If a hospital is revoked, distributions must stop for that hospital. The Trust can recommend new hospitals to the Governor.