Roman Catholic Archbishop of Melbourne v Lawlor & Ors; His Holiness the Pope v National Trustees, Executors and Agency Co of Australiasia Ltd & Ors
51 CLR 11934 - 0523C - HCA
(Judgment by: Gavan Duffy CJ, Evatt J)
Between: Roman Catholic Archbishop of Melbourne
And: Lawlor & Ors
Between: His Holiness the Pope
And: National Trustees, Executors and Agency Co of Australiasia Ltd & Ors
Judges:
Gavan Duffy CJRich J
Starke J
Dixon J
Evatt JMcTiernan J
Subject References:
Charities
Gift to establish Catholic daily newspaper
Validity
Dependent relative gift
Taxation and revenue
Estate duty
Alteration of statutory order of application of assets
Contrary provision
Legislative References:
Property Law Act 1928 (Vic) No 3754 - s 131
Administration and Probate Act 1928 (Vic) No 3632 - s 33; s 34; s 163; Second Schedule, Part II
Estate Duty Assessment Act 1914 No 22 - s 35
Judgment date: 23 May 1934
MELBOURNE
Judgment by:
Gavan Duffy CJ
Evatt J
Under the terms of the will of the late Patrick Lawlor, certain shares were vested in the Archbishop of Melbourne and the Bishops of Ballarat, Bendigo and Sale (comprising the Catholic Hierarchy of Victoria). These shares were to form a nucleus for the purpose of establishing a Catholic daily newspaper. To the same trustees certain other shares were given in order to found or support a farm for the training of orphan or delinquent boys to country life. The testator next provided that, until sufficient funds were in hand to found the daily paper and secure the farm, the income from both benefactions should be used for Catholic education or any good object the Hierarchy might decide.
The main question for determination is whether the establishment of a Catholic daily newspaper under the assumed control and direction of the Catholic Hierarchy in Victoria is a good charitable gift. The term "Catholic daily newspaper" is not a term of art, but it is said to be quite impossible to suppose that a daily newspaper could be produced so as to serve the purpose of carrying on religious and missionary propaganda on behalf of the Catholic Church.
Certain evidence was placed before the Court by Professor Power, a distinguished scholar who is familiar with Roman Catholic educational and missionary activity. Inter alia, he says:
"One of the means adopted by the Catholic Church for the maintenance and propagation of the Catholic Faith and the advancement of the Catholic religion is the promotion of daily newspapers and other publications of the kind in as many countries as possible. These newspapers are used for the advancement of Catholic religion by defining its attitude towards moral problems of the day, defining its teachings on matters of faith and morals and correcting and counteracting misrepresentations as to the history of the Church and its attitude towards problems both past and present. The publication of daily newspapers which are under the control of the Catholic Church is part of the action of the Church in the same way as the publication of religious books, the promotion of lectures and sermons etc, for the advancement in the world of the Catholic religion. The publication of a Catholic newspaper is regarded by the Church as tending directly to the instruction and edification of the public in matters relating to the Roman Catholic religion."
In support of the general position thus outlined, Professor Power quoted the following declaration of Pope Pius XI in the year 1927, when he directed the Archbishops and Bishops of Austria as follows:
"You must not fail to notice the enormous influence for good and for evil which daily newspapers and other publications of the kind have acquired in modern times. And since wicked men make use of them to spread wrong views and corrupt morals you should consider it your duty to make use of them to promote the salvation of your people. For by means of good newspapers, and other writings of the kind false views are gradually dissipated, and Catholics are strengthened to make open profession of Faith and of an upright life."
It is said that although a Catholic daily newspaper under the direct control of the Hierarchy may be engaged partly in spreading the religious doctrines and teachings of the Church, it would not be a "news" paper, unless it also contained both news and information of a secular character. But would the Catholic Church be any the less engaged in disseminating its religious doctrines and teachings merely because it chose to reach the public by supplying daily information and news, the main object throughout being the propagation of the faith? The better opinion would seem to be that, although some of the purposes incidentally served by such a propaganda newspaper as the testator contemplated would be non-religious, that is no sufficient reason for denying to each issue of such a newspaper its dominant character and purpose, that of instructing Catholics in matters of faith and morals and of advancing and spreading the faith and teachings of the Catholic Church throughout the territory of Victoria.
It must be remembered that the daily newspaper of today is vastly different from the daily newspaper of a generation ago to which an incidental reference was made in Byrne v Dunne [F1] by Griffith C.J. What Griffith C.J. said was: "For instance, it might well be said that a political propaganda for the purpose of procuring State endowment of churches or denominational schools, or the establishment of a newspaper conducted on religious or high moral principles, or the establishment of a contemplative order of nuns, would be purposes conducive to the good or religion." But this statement may easily be misunderstood. What the learned Chief Justice was contemplating was a newspaper "conducted on religious or high moral principles," and not a newspaper which was being used for the purpose of teaching, furthering and spreading definite religious teachings.
The newspaper has largely become an instrument of propaganda. The propaganda may have many aspects, political, social, educational or economic. It may reveal itself not only in leading articles, but in the method of presenting the news items of the day, by comment, express or implied, in the headlines which introduce such news, and by the selection and rejection of news and information or portions thereof, and by the degree of prominence given to some item or aspect of news. This may perhaps appear to be an inadequate description of newspaper production, and, of course, the accuracy of the description varies in different places and under differing managements. But no observer with any sense of the reality of things can deny its general accuracy. The published statements of owners and controllers of modern newspapers provide very conclusive evidence that what has been said is by no means an exaggerated statement of the true position. The truth of the declaration of Pius XI., quoted by Professor Power, cannot be gainsaid.
We are quite unable to see the difference between the Catholic Church's propagating its religious tenets and regulating the performance of religious duties (1) through a medium reaching into the homes of the multitude, including Catholics and non-Catholics, and (2) through the ordinary medium of sermons and tracts. The former may be as much a method of preaching the gospel as the more direct and obvious method of strengthening or extending faith through missions and sermons.
It is said further that a daily newspaper must necessarily be a commercial enterprise and thus be inconsistent with a charitable gift. But it is reasonably clear that the religious newspaper contemplated by the testator was not to be devoted to the purpose of production for profit; to this end, the Hierarchy itself was placed in supreme control. It is clear that a newspaper need not be conducted or controlled for the purpose of profit, and even if the proposed Church paper was made self-supporting, that should not prevent it from being regarded as a means of disseminating Catholic faith and teachings.
It would seem that there is some confusion of thought involved in the argument that the scheme indicated by the testator is not charitable. In the present instance he left no discretion to the Hierarchy as to the character of the newspaper he desired to found. This distinguishes the case from Dunne v Byrne, [F2] where there was not only a discretion given to the Archbishop, but the discretion was expressed in the very widest terms. The will very clearly shows that there must be established a "Catholic" newspaper, and that means one devoted to the spreading of such religious doctrines, teachings and ideals as are comprised in the doctrines, teachings and ideals of the Catholic Church. No more effective instrument could be devised for the inculcation of such doctrines than a newspaper circulating daily amongst the people. Why then should it be inferred either (1) that the selected instrument would not be used for the purpose stated, or (2) that the purpose was to be the furtherance of Catholic "interests" in some political or secular or non-religious direction rather than the purpose asserted or indicated throughout the will? Neither inference seems legitimate, and even if some doubt could be entertained about the intention of the testator, this is eminently a case where the purpose should be regarded ut res magis valeat quam pereat.
It has to be recognized that the methods of preaching and extending a gospel or a faith alter and develop with the changing years. In our opinion, the real crux of this case is whether a newspaper is to be regarded by the Courts as being incapable of performing for church and religious purposes the very function it discharges for many other purposes.
Another point urged by the respondents is that it would not be possible to enforce the trust. This seems to beg the whole question. The duty of seeing to the carrying out of the trust would devolve upon the Attorney-General. No greater difficulty would attend the enforcement of the present trust than any other analogous trust. In the last resort, the Court might have to determine as a question of fact whether the newspaper was being used for the spreading of the Catholic religion or for some other purpose. Difficulties of a precisely similar character frequently attend the enforcement of legal obligations. The only question here is, what is the obligation?
The gift for the purpose of establishing a Catholic daily newspaper should therefore be regarded as a valid charitable gift, and it becomes unnecessary to consider whether s. 131 of the Property Law Act 1928 would so operate upon the gift as to compel the Court to adopt such a construction as would ensure its validity. The argument on behalf of the appellant is that s. 131 applies as much to a one purpose (e.g. "benevolent purposes") trust or to a specific trust (e.g. the present gift), where the one purpose or specific purpose admittedly includes charitable purposes stricto sensu, as it does to a trust which, upon its face, exhibits several distinct purposes, one at least being charitable. An illustration of the latter application of s. 131 is afforded by the testator's direction as to the application of the income from the two principal gifts.
The question still remains whether the modern rule against perpetuities applies to render the gift wholly void. Now the testator makes it clear that his gift is to be a "nucleus" only, so that it may not be sufficient for the immediate establishment of the newspaper. Until sufficient funds are in hand for such purpose, the income from the shares is to be used for Catholic education, etc It is, of course, no answer to the suggested application of the rule that, by the will, the shares vest immediately in named trustees, because perpetuities cannot be created under the shield of a trust any more than they can be created in an openly asserted settlement of the legal estate itself.
The first answer suggested by counsel for the appellant is that the gift for the establishment of the newspaper is preceded by a gift for "Catholic education, or any good object the Hierarchy may decide," and that, as the Supreme Court has held, s. 131 of the Property Law Act 1928 operates to confine the alternatively expressed gift of the income to the charitable purpose (Catholic education), and to exclude the non-charitable purpose. The argument then is that we have a gift of the shares to charity A subject to a provision that, on the happening of a certain event, it shall go over to charity B (the newspaper), and the gift over will take effect notwithstanding the possible remoteness of the event (see Jarman on Wills, 6th ed. (1910), at pp. 211, 212; 7th ed. (1930), at p. 197). The authorities cited by Jarman and relied upon by the appellant for this proposition of law are Christ's Hospital v Grainger [F3] and In re Tyler. [F4] The first case related to a provision in a will that upon a contingency which might only occur in the indefinite future, a legacy to the Corporation of the town of Reading on a charitable trust should go over to the Corporation of London upon another charitable trust. The reasoning of Lord Cottenham in this case seems to have been based upon the idea of perpetuities in the sense of inalienability rather than in the modern sense of remoteness of vesting, and Gray, The Rule against Perpetuities, 3rd ed. (1915), fully discusses the case from such a point of view (s.599-s.601). The other case mentioned by Jarman - In re Tyler - is regarded by the editor, Mr. Sweet, as "contrary to principle" (6th ed., p. 212).
Whatever may be the force of the criticisms of Sweet and Gray, it is at least open to doubt whether the gifts in the present case are to be regarded as corresponding in any real sense to the trusts in Christ's Hospital v Grainger, [F5] and In re Tyler. [F6] Here the main gift is for the purpose of establishing the newspaper. Its commencing point being uncertain in the view of the testator, he makes an ancillary provision dealing with the income until the paper is founded. This is not so much a gift to charity A with a gift over in a contingency which may never eventuate, but rather a gift to a charity under such circumstances that the charity may never enjoy it at all, with a direction that, in the meantime, the income of the gift may be enjoyed by another charity. The distinction may be a fine one, but it is doubtful whether the case is covered by Christ's Hospital v Grainger [F7] and In re Tyler. [F8]
But the appellant invokes another doctrine in order to escape an infringement of the rule against remote vesting. That doctrine is summed up by Jarman, 6th ed. (1910), at p. 212; 7th ed. (1930), at pp. 197, 198, in these terms:
"If property is effectually and absolutely devoted to charity, a direction that it shall not be applied in a certain way until after an event which may not happen within the period allowed by the rule against perpetuities, does not affect the validity of the gift."
This principle was applied in the case of Wallis v Solicitor-General for New Zealand, [F9] where Lord Macnaghten said: [F10]
"It is well settled, as stated in Tudor's Charitable Trusts, 3rd ed., p. 53, that where there is an immediate gift for charitable purposes, the gift is not rendered invalid by the fact that the particular application directed cannot immediately take effect, or will not of necessity take effect within any definite limit of time, and may never take effect at all."
We are of opinion that this principle applies to the gift for the purpose of founding a Catholic daily newspaper, and that there is no infringement of the rule against remote vesting.
A question also arises as to the direction of the testator that one-half of the balance and of the remainder of his estate should be given to the Hierarchy "in addition to the bequest, already made, to establish a Catholic daily paper." We are of opinion that this gift is intended, as Mann A.C.J. said, "to supplement ... the fund already provided by the shares for the establishment of the newspaper", [F11] and is not a separate or unconditional gift to the Hierarchy. But it necessarily follows from the reasoning of this judgment that the gift is as valid as the main gift which it supplements.
The appeal should, therefore, be allowed and the answers to questions 1, 2 and 3 should be varied by declaring that the respective gifts referred to in such questions are, and each of them is, valid.
As the order of the Court is that the appeal shall be dismissed, it becomes necessary to deal with question 10 of the originating summons, the answer to which is the subject of a separate appeal. On that question we agree with the judgment of our brother Dixon and with the order proposed by him.