prize money, up-keep, and principally on improvements for purposes of exhibition only. Our prizes amount to 3000l. We 1905. THE MUNICIPAL have an overdraft now. The Government built the police COUNCIL OF inspector's cottage. SYDNEY υ. AGRICULTURAL Admitted that the trustees of the society made no personal THE ROYAL profit, and that all moneys after payment of debts were devoted to proper objects of the society. After hearing argument I decided that the respondents were not ratable under the provisions of the Sydney Corporation Act, 1902. The main ground that was argued before me was that the purposes were not public inasmuch as a charge was made. The appellants feeling dissatisfied with my determination as to the principle of assessment have duly lodged a notice of appeal, and the appellants and respondents have agreed on the foregoing facts for the purposes of an appeal to the Supreme Court, and the question is whether on the above facts my decision was correct Gordon, K.C., and Leverrier, for the plaintiffs—appellants. The land must be used solely for the purposes of public health recreation and enjoyment if it is to be exempt within the meaning of s. 110 (5) of 1902 No. 35: Borough of Randwick v. Dangar (15 W.N. 37); Mayor of Essendon v. Blackwood (2 A.C. 574). Here out of the surplus revenue the society might build a club house and give exclusive privileges to the members. Further the evidence of the secretary is that "shows and football matches are held there," that charges are made for admission for all recreation except cricket, and even then the clubs have to pay for the use of the ground. The society receives 600l. per annum for quartering the mounted police, and lets the grounds for sports, advertising, &c. Some of these objects do not come within s. 110 (5). The purposes for which the land is used are either sanctioned by the Minister under 1902 No. 45, s. 4, or acquiesced in by the persons using it, and they cannot say, "we do so use it, but it is illegal and therefore it is not ratable." Even if it was only used for the purposes mentioned in s. 4 of 1902 No. 45, the land would not be exempt, because it would not even then be used for purposes of public recreation, health, &c., The words "such other purposes as the Minister may sanction " OF N.S.W. 1905. THE in s. 4 of 1902 No. 45 cannot be limited to purposes ejusdem generis with the first part of that section. The Minister has COUNCIL OF power to sanction its use for any purpose except horse-races or pony-races. MUNICIPAL SYDNEY v. THE ROYAL AGRICULTURAL SOCIETY Cullen, K.C., Coghlan and O'Reilly, for the defendants, OF N.S.W. respondents. Borough of Randwick v. Dangar was decided under the Municipality Act of 1897. In that Act the words are "vested in trustees and used by, &c.," in the Act now before us, 1902 No. 35, the word "use" is omitted. By the latter Act the land is vested for purposes of public recreation, &c. There is nothing about its "use." The society may be illegally using the land, but that cannot make it ratable property. The question is for what purpose was it "vested." The case of the Municipal Council of Sydney v. Attorney-General of N.S.W. ([1894] A.C. 444) shows that it was vested in trustees for purposes of public recreation, &c. Further that the fact that the public are charged for admission makes no difference. If then it is vested in trustees for purposes of public recreation and they allow it to be used for other purposes, they may be liable to an action for a breach of trust but not to be rated He referred to Dilworth v. The Commissioner for Stamps ([1899] A.C. 99 at 112); Ex parte Bennetts (21 N.S.W.L.R. 248 at 250). September 22. Leverrier in reply. Sect. 4 of 1902 No. 45 does not limit the trustees to use these lands for purposes of public recreation, &c. It is vested for purposes which go beyond purposes of public recreation, &c., and is therefore not exempt. Any purpose which promotes the success of pastoral and farining pursuits is ejusdem generis with the purposes mentioned in s. 4, 1902 No. 45. And the same may not recreate the public, therefore it is not within s. 110 (5). Sept. 22. C.A.V. The judgment of the Court (THE CHIEF JUSTICE, COHEN and PRING, JJ.) was delivered by, PRING, J. This was an appeal from a decision of Mr. District Court Judge Rogers by which he held that the respondents were 1905. THE MUNICIPAL SYDNEY บ. AGRICULTURAL SOCIETY OF N.S.W. Pring J. not ratable under the provisions of the Sydney Corporation Act, 1902, in respect of certain land and buildings within the City of Sydney. The respondents were incorporated by a private Act, COUNCIL OF 33 Vic., and they had, prior to the year 1902, occupied the land and buildings for the purpose of holding agricultural shows, &c. THE ROYAL In the year 1902 the Act No. 45 of 1902 was passed. By the 3rd section the said lands were vested in the respondents for the term of twenty-one years from the 30th day of June, 1894. The 4th section is as follows: "The said society may occupy and use the said land for the purpose of holding shows and exhibitions of agricultural, horticultural and pastoral produce, implements and machinery, of minerals, of arts, and manufactures, and of live stock, and for such other purposes as the Minister may sanction, and shall admit the public thereto subject to such charges and conditions as shall be approved by the Minister, provided always that no horse races or pony races shall be held on the said land." The respondents have accordingly occupied and used the said lands for the purpose of holding the shows and exhibitions specifically mentioned in the 4th section, and have also let the ground for the Eight-hours' Demonstration, cricket and football matches, St. Patrick's Day celebration, and for advertising purposes. They charge for admission on all occasions except cricket matches. It also appears that for the last two or three years the mounted police of Sydney have been quartered in the grounds, and for this the respondents receive 600l. per annum. All moneys received by the respondents are spent in prize money, up-keep and improvements for the purpose of exhibition only, and are devoted to the proper objects by the respondents. They claim that they are exempted from liability to pay rates by reason of s. 110 subs. (5) of the Sydney Corporation Act (1902 No. 35), which so far as applicable is as follows: "No land vested in trustees for the purpose of public recreation health or enjoyment shall be liable to be assessed or rated in respect of any rate under this Act." It was admitted that the land in question was vested in the respondents as trustees for the purpose of public recreation and enjoyment, but it was contended by the appellants that it must be used solely for that purpose, and that if it is used for 1905. THE MUNICIPAL COUNCIL OF SYDNEY v. AGRICULTURAL any purpose than those mentioned in s. 4 of the Act No. 45 of 1902 it is liable to be rated. I think that the "other purposes' mentioned in that section mean purposes ejusdem generis with those specifically mentioned, but in this sense only that the THE ROYAL purposes must be for shows and exhibitions tending to public recreation and enjoyment, and that cricket and football matches may well be said to come within that category. The proviso Pring J. against horse races and pony races seems to support this conclusion. With regard to advertising and the quartering of the police I cannot think that they can be said to be for public recreation or enjoyment. However that may be, s. 110 subs. (5) of the Sydney Corporation Act does not refer in any way to the "use" of the land. All that is necessary is that the land shall be vested in trustees for the purposes of public recreation, health or enjoyment. If the respondents use the land for any purposes other than those mentioned in s. 4 of the Act No. 45 of 1902 the Government may, if they choose, take advantage of s. 5 of the same Act and issue a notification revesting the land in the Crown. But the user of the land in contravention of the trust does not of itself make the land cease to be vested in trustees for the purposes of public recreation, health and enjoyment. It was further contended that as the public are charged for admission the respondents are not entitled to exemption from rates. Sect. 4 of the Act No. 4 of 1902 appears to me to dispose of this contention. By that section the respondents are entitled to make such charges as shall be approved by the Minister. The approval of the Minister is therefore the protection which is afforded to the public. He represents them and their interests in the matter. Apart altogether from this section I think that the contention is disposed of by the case of the Municipal Council, The Agricultural Society of New South Wales and Sydney Driving Club v. The Attorney-General for N.S.W. and Milroy ([1894] A.C. 444). One of the appellants in that case was the same society which is the present respondent. From the evidence of Mr. Webster it appeared that there were turnstiles where people paid for coming in. There were also two gates where the public could go in without payment. Out of 50,000 people 46,000 paid. The land at that time was vested in the Municipal Council of Sydney 1905. THE MUNICIPAL SYDNEY v. AGRICULTURAL SOCIETY OF N.S.W. under the Public Parks Act of 1854 (18 Vic. No. 33), and was dedicated for public recreation. At p. 454, Lord Hobhouse says: "If that be so, the appointment of trustees in 1871 is valid, and COUNCIL OF the only question is whether the municipal corporation has dealt with the land in a way which is authorized by the powers THE ROYAL conferred on them by the Parks Act. On this point no complaint has been made at their Lordships' bar, and it does not appear that there is any dissatisfaction among the people of Sydney, Pring J. who might shew it if felt very effectually in their municipal elections. There is a very general liking for annual 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." We have in this passage a clear enunciation by the Privy Council that the corporation by charging for admission had not dealt with the land in a way not authorised by the Parks Act. The land was dedicated for public recreation and vested in the corporation as trustees for that purpose, and it was held that they were entitled to charge for admission. Now, there is the legislative declaration by the Act No. 45 of 1902 that the respondents may charge for admission while the public are protected by the provision that the charge shall be approved by the Minister. For these reasons I am of opinion that the learned District Court Judge was right, and that this appeal should be dismissed. Appeal dismissed with costs. Attorney for the appellants: P. S. Dawson. Attorney for the respondents: Henry Dawson. |