Brisbane City Council v Attorney General for Queensland

• Jurisdiction: Queensland
• Court: Privy Council
• Judgment Date: 1978
• Year: 1978
• Date: 1978

[PRIVY COUNCIL] BRISBANE CITY COUNCIL AND MYER SHOPPING CENTRES PTY. LTD. APPELLANTS AND ATTORNEY-GENERAL FOR QUEENSLAND (AT THE RELATION OF ARTHUR THOMAS SCURR AN WILLIAM PERCIVAL BOON) RESPONDENT [ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF QUEENSLAND] 1978 March 14, 15, 16 20; May 23 Lord Wilberforce, Lord Hailsham of St. Marylebone, Lord Russell of Killowen, Lord Keith of KinKel and Sir John Pennycuick

Australia - Queensland - Charity - Charitable purposes - Conveyance to council on conditions - Area to be set aside for “show-ground, park and recreational purposes” - Whether question to create trust - Whether exclusively charitable - Earlier planning consent appeals - Whether question of trust res judicata

In 1938 the trustees of a society whose main function was to organise a district annual show conveyed about 20 acres of land to Brisbane City Council in consideration of the council's discharging a debt of £450 owed by the society and on the following conditions (recorded in the minutes of the council and in a letter of October 25, 1937, from the council to the trustees):

“(a) the area to be set apart permanently for show-ground, park and recreation purposes, (b) the show ring to be levelled off; (c) the show society to be granted the exclusive use of the ground without charge for a period of two weeks in each and every year, for the purposes of and in connection with the district annual show.”

In 1970 developers applied under the City of Brisbane Town Planning Act 1964 for consent to use the land as a shopping centre and the council contracted to sell the land to them. The relator S. gave notice of objection to the granting of planning consent: his appeal to the Local Government Court eventually reached the High Court of Australia. Another appeal against the granting of planning consent by the relator to the Local Government Court was dismissed in December 1975. In March 1971, during the pendency of the planning appeals, the Attorney-General at the relation of S. brought an action against the council and the developers for a declaration that the purported sale to the developers was ultra vires and void. That action was dismissed. In the present proceedings, the Attorney-General on the relation of S. and B. sought, as against the council and the developers, a declaration that the land was subject to a valid and enforceable charitable trust. The trial judge found as a fact that a “show” in Queensland operated to encourage agriculture and horticulture and made an order granting the declaration. The council and the developers appealed on the grounds that the council did not hold the land as trustee; that there was no valid and enforceable public charitable trust and that even if there were the Attorney-General was debarred from asserting it in that, inter alia, the existence of the trust could and should have been asserted in the previous litigation against the council. The Full Court of the Supreme Court dismissed the appeal.

On appeal by the council and the developers to the Judicial Committee: —

Held, dismissing the appeal, (1) that the terms of paragraph (a) of the conditions that the land was to be set apart permanently for specified purposes showed unequivocally an intention to create a trust for the purposes specified binding on the land in the council's hands and, there being nothing in paragraphs (b) and (c) inconsistent with that intention, the council had acquired the land as trustee (post, p. 304E–F).

(2) That, since on the trial judge's findings a “show” operated in Queensland to encourage agriculture, a trust for “show-ground purposes” could properly be construed as a trust for the promotion of agriculture and as such was a charitable activity beneficial to the community within the fourth head of Pemsel's case and, therefore, since on authority “park and recreational purposes” were also charitable objects, the purposes specified in paragraph (a) of the conditions were exclusively charitable and the land was subject to a valid and enforceable public charitable trust and that that validity was not impaired by the terms of paragraph (c) which permitted the trusts to be implemented in part by the land's being placed at the disposition of private individuals (post, pp. 306B–F, 307B).

Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, H.L.(E.) and Inland Revenue Commissioners v. Yorkshire Agricultural Society [1928] 1 K.B. 611, C.A. applied.

(3) That the basis of the defence of res judicata in its wider sense, by which a party was precluded from raising an issue which he could and should have raised in earlier proceedings, was that to raise such an issue was an abuse of process and that (even assuming that in the present case the existence of the trust was known at the time of the earlier proceedings and that there was the necessary identity of parties), since it would have been inappropriate to assert the existence of the trust either in the planning consent appeals or in the 1971 action against the council, the bringing of the present action was not an abuse of process and the defence failed (post, pp. 307H–308A, D–F).

Judgment of the Full Court of the Supreme Court of Queensland affirmed.

The following cases are referred to in the judgment of their Lordships:

Dunne v. Byrne [1912] A.C. 407, P.C.

Greenhalgh v. Mallard [1947] 2 All E.R. 255, C.A.

Hadden, In re [1932] 1 Ch. 133.

Henderson v. Henderson (1843) 3 Hare 100.

Hoystead v. Commissioner of Taxation [1926] A.C. 155, P.C.

Income Tax Special Purposes Commissioners v. Pemsel [1891] A.C. 531, H.L.(E.)

Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch. 73; [1971] 3 W.L.R. 853; [1971] 3 All E.R. 1029, C.A.

Incorporated Council of Law Reporting (Q.) v. Federal Commissioner of Taxation (1971) 125 C.L.R. 659.

Inland Revenue Commissioners v. Baddeley [1955] A.C. 572; [1955] 2 W.L.R. 552; [1955] 1 All E.R. 525, H.L.(E.).

Inland Revenue Commissioners v. Yorkshire Agricultural Society [1928] K.B. 611, C.A.

Monds v. Stackhouse (1948) 77 C.L.R. 232.

Spence, In re [1938] Ch. 96.

Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581; [1975] 2 W.L.R. 690, P.C.

The following additional cases were cited in argument:

Ashton's Estate, In re [1938] Ch. 482; [1938] 1 All E.R. 707, C.A.; sub nom. Farley v. Westminster Bank Ltd. [1939] A.C. 430; [1939] 3 All E.R. 491, H.L.(E.).

Attorney-General v. Proprietors of Bradford Canal (1866) L.R. 2 Eq. 71.

Attorney-General v. Southampton Corporation (1858) 1 Giff. 363.

Associated Minerals Consolidated Ltd. v. Wyong Shire Council [1975] A.C. 538; [1975] 2 W.L.R. 81, P.C.

Alexandra Park Trustees v. Haringey London Borough (1967) 66 L.G.R. 306.

Barby v. Perpetual Trustee Co. Ltd. (1937) 58 C.L.R. 316.

Bones, In re [1930] V.L.R. 346.

Brunsden v. Humphrey (1884) 14 Q.B.D. 141, C.A.

Crystal Palace Trustees v. Minister of Town and Country Planning. In re Town and Country Planning Act 1947 [1951] Ch. 132.

Congregational Union of New South Wales v. Thistlethwayte (1952) 87 C.L.R. 375.

D'Aguiar v. Inland Revenue Commissioner (unreported), January 19, 1970, P.C.

Dingle v. Turner [1972] A.C. 601; [1972] 2 W.L.R. 523; [1972] 1 All E.R. 878, H.L.(E.).

Erlanger v. New Sombero Phosphate Co. (1878) 3 App.Cas. 1218, H.L.(E.).

Hadaway v. Hadaway [1955] 1 W.L.R. 16, P.C.

Harpur's Will Trusts, In re [1961] Ch. 38; [1960] 3 W.L.R. 607; [1960] 3 All E.R. 237.

Hood, In re [1931] 1 Ch. 240, C.A.

Inland Revenue Commissioners v. City of Glasgow Police Athletic Association [1953] A.C. 380; [1953] 2 W.L.R. 625; [1953] 1 All E.R. 747, H.L.(Sc.).

Kok Hoong v. Leong Cheong Kweng Mines Ltd. [1964] A.C. 993; [1964] 2 W.L.R. 150; [1964] 1 All E.R. 300, P.C.

Leahy v. Attorney-General (N.S.W.) [1959] A.C. 457; [1969] 2 W.L.R. 722; [1959] 2 All E.R. 300, P.C.

Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221.

Lysons v. Commissioner of Stamp Duties [1945] N.Z.L.R. 738.

Mitford v. Reynolds (1842) 1 Ph. 185.

Morgan v. Wellington City Corporation [1975] N.Z.L.R. 416.

Murray v. Thomas [1937] 4 All E.R. 545.

New Brunswick Rail Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1; [1938] 4 All E.R. 747, H.L.(E.).

Nightingale v. Goulbourne (1848) 2 Ph. 594.

Oxford Group v. Inland Revenue Commissioners [1949] 2 All E.R. 537.

Royal National Agricultural and Industrial Association v. Chester (1974) 48 A.L.J.R. 304.

St. Mary Magdalen, Oxford v. Attorney-General (1857) 6 H.L.Cas. 189, H.L.(E.).

Schebsman, In re [1944] Ch. 83, C.A.

Schellenberger v. Trustees Executors and Agency Co. Ltd. (1952) 86 C.L.R. 454.

Smith, In re [1967] V.R. 341.

Smith v. Kerr [1902] 1 Ch. 774.

Stratton v. Simpson (1970) 125 C.L.R. 138.

Trades House of Glasgow v. Inland Revenue, 1970 S.L.T. 294.

Tribune Press, Lahore (Trustees) v. Income Tax Commissioners, Punjab, Lahore [1939] 3 All E.R. 469.

Wanganui Borough...