Alice Springs Town Council v Mpweteyerre Aboriginal Corporation, Anthepe Housing Association Inc. Ilyeperenya Association Inc. Yarrenyty Altere Association Inc. Aper Alwerrknge Association Inc. Ilperle Tyathe Association Inc., Mt Nancy Housing Association Inc., Karnte Aboriginal Corporation Akngwertnarre Association Inc., Ewyenper Atwatye Association Inc., Ilparpa Aboriginal Corporation, Nyewente Association Inc. and Ilpiye-Ilpiye Association Inc. [NTR]

• Jurisdiction: Northern Territory
• Judge: Martin CJ,Mildren J,Thomas J
• Judgment Date: 19 June 1997
• Docket Number: FILE NO: CA 6/96
• Date: 19 June 1997
• Court: Supreme Court

(1997) 115 NTR 25

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Martin CJ, Mildren and Thomas JJ

FILE NO: CA 6/96

Between:

Alice Springs Town Council

Appellant

and

Mpweteyerre Aboriginal Corporation, Anthepe Housing Association Inc. Ilyeperenya Association Inc. Yarrenyty Altere Association Inc. Aper Alwerrknge Association Inc. Ilperle Tyathe Association Inc, Mt Nancy Housing Association Inc, Karnte Aboriginal Corporation Akngwertnarre Association Inc, Ewyenper Atwatye Association Inc, Ilparpa Aboriginal Corporation, Nyewente Association Inc. and Ilpiye-Ilpiye Association Inc.

Respondents

REPRESENTATION:

Counsel:

Appellant: T. Riley QC & J. Reeves

Respondent: D.J. Bleby QC & C.H. Goodall

Cases:

Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 approved

Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 230 approved

Wilson v Lowery (1993) 110 FLR 142 approved

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FLR 280 referred to

Hope v Bathurst City Council (1980) 144 CLR 1 referred to

Australian National Railway Commission v Collector of Customs (SA) referred to

Cowell Electric Supply Company Ltd v Collector of Customs (1995) 127 ALR 257 referred to

Commissioner of Taxation v Cooper (1991) 29 FLR 177 referred to

Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197 applied

Joyce v Ashfield Municipal Council (1959) 4 LGRA 195 referred to

Mombasa Pty Ltd v Nikic (1987) 47 NTR 48 followed

Carlson v King (1947) 64 WN (NSW) 65 followed

Wormald International (Aust) Pty Ltd v Aherne (unreported 23/6/95) approved

Holmes v Angwin (1906) 4 CLR 297 considered

Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] 124 CLR 192

Re Sterling (1978–9) 30 ALR 77 approved

Australian Securities Commission v Bell (1991) 104 ALR 125 approved

Johns v Conner (1992) 104 ALR 465 approved

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 approved

Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 followed

McMorrow v Airsearch Mapping Pty Ltd (Court of Appeal, unreported 7/3/97) approved

Smith v Mann (1932) 47 CLR 426 considered

Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315 distinguished

College of Law (Properties) Pty Ltd v Willoughby Municipal Council (1978) 38 LGRA 81 approved

Liverpool and District Hospital for Diseases of the Heart v A-G [1981] Ch 193 applied

Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531 approved

Re Gillespie [1965] VR 402 approved

Dingle v Turner [1972] AC 601 approved

Re Compton (1945) Ch 23 approved

Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297 approved

Metropolitan Fire Brigade Board v Federal Commissioner of Taxation (1990) 97 ALR 335 distinguished

Pettitt v Dunkley (1971) 1 NSWLR 376 distinguished

Re Sterling; Ex Parte Esanda Ltd (1980) 30 ALR 77 considered

Dunkel v DCT (NSW) (1990) 99 ALR 776 considered

Australian Securities Commn v Bell (1991) 104 ALR 125 considered

Johns v Connor (1992) 107 ALR 465 considered

Legislation:

Local Government Act 1985

Local Government Act 1993

Work Health Act

Supreme Court Act

Workers Compensation Act 1926 (NSW)

Aboriginal Councils and Associations Act 1976 (Cth)

Associations Incorporation Act (N.T.)

Income Tax Assessment Act

Statutes of Charitable Uses 43 Elizabeth I, C4

Fire Brigade Act (QLD)

Limitation Act

Payroll Tax Act 1978 (N.T.)

Texts:

Craies on Statute Law, 7th Edition

Pearce and Geddes, Statutory Interpretation in Australia, 4th Edition

Halsbury's Laws of England (4th Edition, reissue) Volume 5(2) para 211

Halsbury's Laws of Australia, Volume 4 para 75–810

Shorter Oxford English Dictionary

Appeal — against His Honour's finding that the Local Government Tribunal had erred in law — whether each of the appellants used or occupied the land owned by it for the purpose of a benevolent institution or charity.

Cross-Appeal — against His Honour's refusal to make more substantial orders than he did, as a consequence of allowing the appeal.

Appeal to the Supreme Court limited to a question of law — what is a question of law — jurisdiction of appeal court — requirement of reasons for the decision.

Powers of the Supreme Court — Powers of the Court of Appeal in deciding the appeal — where a right or power is created — implied is the power to do everything which is indispensable for the purpose of exercising the right or power or fairly incidental or consequential to the power itself — whether the error vitiates the decision appealed from — remedy.

Administrative Law — No evidence to support the Tribunal's finding — who may be members — to whom were the beneficiaries of the associations activities.

Equity — Incorporated corporations — constitutions of the associations — charitable corporations — constructive trust — objects of the associations — charitable purposes — meaning of ‘poverty’ — class of beneficiaries — public benevolent institutions.

REASONS FOR JUDGMENT

1 (Delivered 19 June 1997)

Martin CJ

2 I have had the benefit of the draft reasons prepared by Mildren J. and agree with them. I concur with the orders proposed.

Mildren J

3 Each of the respondent Associations is the lessee or occupier of land within the municipality of the appellant council.

4 In 1991, the appellant's clerk entered the respondents' names as owners of land and the respondents' lands in the rate book kept for the purposes of s. 103 of the Local Government Act 1985 (the ’ 1985 Act’). Only rateable land is to be entered into the rate books, and land which ceases to be rateable must be deleted from the rate book (s. 104(2)). All land within the municipality is rateable except for land which falls with the exceptions set out in s. 97 (1)(a) to (g) or s. 97 (3) of the 1985 Act. In 1991, one category of exception was, vide s. 97 (1)(d), ‘land used or occupied for the purposes of a public hospital, benevolent institution, or charity.’

5 If the owner or occupier of land, whose name is entered into the rate book, wishes to object to the land being entered into the rate book, he may appeal to the Council on the ground, inter alia, that the land is not rateable land (ss. 107 and 108). In March 1991 the respondents appealed to the appellant. On 10 September 1991, the appellant disallowed the respondents' appeals.

6 On 2 October 1991, the respondents appealed to the Local Government Tribunal.

Ss. 109(2) and (3) of the Act provided that:

‘(2) A person to whom a notice is given under sub section (1) may, within 28 days after and including the date on which the notice is received, apply to the Tribunal against the decision of the council and the Tribunal has jurisdiction to hear and determine the application.

(3) The Tribunal may, upon hearing an application under this section, confirm, reverse or vary the decision of the council and make such order, as to costs or otherwise, as it thinks fit.’

7 The Local Government Tribunal was created by s. 185 of the Act. Each magistrate was a member of the Tribunal (s. 185(2)) and the Chief Magistrate was the President (s. 185(3)). The powers of the Tribunal were set out in s. 186. These included a power, vide s. 186(4), to order the clerk to make an alteration to the rate book as a consequence of the determination of the Tribunal. The Tribunal may have been constituted by one or more members (s. 187(1)). S. 188, which is in a familiar form, provided that the Tribunal was not bound to act in a formal manner, is not bound by the rules of evidence, may inform itself on any matter in such manner as it thought fit, and shall act without regard to technicalities and legal forms. S. 190 specifically permitted the Tribunal to receive hearsay evidence.

8 Before the applications to the Tribunal could be heard, each respondent changed the objects of their respective constitutions.

9 The Tribunal constituted by Mr Hook SM commenced to hear the applications on 17 August 1992, which hearings concluded on 10 March 1993. The nature of the ‘appeal’ before the Tribunal was discussed by the learned Magistrate in his written reasons for decision, (at AB 1915–16) as follows:

‘At the time of the appeal to the Alice Springs Town Council the material before the Council included the then constitutions of each of the appellants. On February 1992, that is after the Council disallowed the present appeals, each appellant changed the objects of their respective constitutions. Both sides agreed that the appeals before me were hearings de novo. Counsel for the appellants agreed that whilst the altered constitutions should be considered as part of the appeal in reaching a decision, that decision would date from the time of the hearing and not relate back to the date the appeal to the Council was disallowed.’

10 Each of the notices of appeal to the Tribunal relied upon the same ground, viz., that the subject land was used or occupied for the purposes of a benevolent institution or charity.

11 However, the issue which his Worship seems to have decided, was stated in this form, (AB, p 1909):

‘The ground for appeal, as I have already stated, claims each of the several Town Camps were a benevolent institution or a charity.’

12 It is to be noted that his Worship used the expression ‘Town Camps,’ rather than ‘land’, and seems to have focussed on the question of whether the respondents were benevolent institutions or charities, rather than on whether the land in question was ‘used or occupied for the purposes of’ a benevolent institution or charity. At the conclusion of his reasons, his Worship said, (AB 1937):

‘There is no charity or benevolent institution in the case of any one of the several associations.’

13 It is necessary to explain the reference to ‘Town Camps’. At AB 1910 to 1915, his Worship set out the...