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: Rich 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 CJ
Rich JStarke J
Dixon J
Evatt J
McTiernan 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:
Rich J
These are two appeals raising questions under the will of the late Patrick Lawlor, who died on 6th October 1932 leaving a considerable estate. The first question is whether certain trusts upon which he directs that specific property and a share of his residue shall be held, are valid as trusts for charitable purposes. The trusts of the specific property are as follows:
"To the Archbishop of Melbourne and the Bishops of Ballarat, Bendigo and Sale, my shares in the Herald and Weekly Times, Australian Paper and Pulp and Gordon and Gotch, as a nucleus, to establish a Catholic daily newspaper, to the same beneficiaries, my shares in Goldsbrough Mort and Company, to found a farm, or supplement those already secured, for the training of delinquent or orphan boys, to country life; the income from those two benefactions, to be used for Catholic education, or any good object the Hierarchy may decide, until sufficient funds are in hand, to found the daily paper and secure the farm."
The residuary disposition of the estate is into two half shares. As to the second half share the will gives it in these words:
"To the Hierarchy in addition to the bequest, already made, to establish a Catholic daily paper."
Notwithstanding the contention that this is an independent gift to the Hierarchy untrammelled by conditions, I think that the words "to establish a Catholic daily paper" express a condition of the gift and are not merely a description attached to the words "bequest, already made." The substantial question to be decided is therefore, whether the gifts of property "to establish a Catholic daily newspaper" constitute a valid charitable bequest. Of course, in so far as the specific gift fails, the property intended to be thereby disposed of falls into residue, one half of which will, according to the decision of the question I have stated, go either to the next of kin as undisposed of or be held for the purpose directed by the testator.
The Supreme Court of Victoria were
"of opinion ... that the establishment of a newspaper, as that word is always understood, even though qualified by the word 'Catholic,' is not a charitable object either within the original meaning of the Statute of Elizabeth or within the extensions which have been given to those objects by judicial decision". [F12]
The appeal against this decision was supported on the ground that under the classification adopted by Lord Macnaghten in Pemsel's Case [F13] the trust was for religious purposes or, alternatively, for a purpose generally beneficial to the public.
Although the classification is acknowledged to be no more than an arrangement of existing case law and not the formulation of definitions, a tendency exists to treat the fourth class as a description, correspondence to which is sufficient to uphold a trust. This is a potent source of error. It has frequently been pointed out that cases falling under this class must come within the analogies recognized by the course of judicial decision as within the general scope of the Statute of Elizabeth. Unfortunately whether a given case not included within the first three classes falls within the fourth class can only be ascertained by familiarity with the decided cases. To my mind it is hopeless to treat this gift as charitable for any reason except one based upon its religious tendency.
I therefore turn to the question whether the gift can be supported as one charitable because for the purpose of religion. In considering this question one may, I think, take into account the known policy of the Roman Catholic Church, as stated in the affidavit of Father Power, of promoting the publication of daily newspapers under the control of the Church. At the same time, in the end, we must decide upon the testator's language what kind of publications would be permitted by the provision he has expressed. The notion of a daily newspaper necessarily carries with it the conduct of a business enterprise which could not ignore the temporal necessity of recovering outlay by revenue. However desirous the managers of such an enterprise might be of advancing the cause of the Roman Catholic faith, the means of doing so must bend to exigencies which no daily paper could defy. Indeed, the description "daily newspaper" ex vi termini makes the primary character of the publication the dissemination of news, and of some at least of the modern substitutes for news. No doubt both in what the paper would exclude and what it would include its Roman Catholic character would be the determining factor. But it would remain a newspaper, although a newspaper conducted for Roman Catholics and directed to the advancement of Roman Catholic interests and beliefs. In the case of trusts for the publication of works or other literary matter in being at the time of the trust taking effect, the Court determines whether the trust is for a charitable object by an examination of the matter to be published (Thornton v Howe: [F14] Compare De Themmines v De Bonneval). [F15] But in such a case as this, where the trust directs the publication of a periodical of a described character, all the Court can do is to ascertain the meaning of the description and consider whether a publication coming within it performs a function which falls within the legal conception of charitable. In the present case it is important to remember that all purposes of religion are not charitable, and that it is settled by high authority that purposes judged most conducive to the good of religion go beyond what the law allows to be charitable (Dunne v Byrne). [F16] A newspaper conducted as a vehicle aiding in the advancement of the Roman Catholic faith would, in my opinion, be a publication which could not be contained within the legal conception of charity. But I do not think that the advancement of the Roman Catholic faith is the only purpose included in the description "Catholic daily newspaper." It appears to me to include also the general benefit of the adherents to the faith, considered as a body having common interests, aspirations and aims.
In my opinion the gift cannot be supported as a charitable gift. But it was suggested that s. 131 of the Property Law Act 1928 (Vict.) applied in such a way to control the testator's definition of purposes that the Court could uphold the gift, but as for a modified and charitable purpose. This provision, which is peculiar to Victoria, appears to me to apply only where the purposes of the gift or bequest are severable, and to enable the Court to cast out from the category of purposes those which are non-charitable. I am quite unable to see in this case how any definite and ascertainable charitable purpose can be isolated and segregated out of the description "Catholic daily newspaper." It is one entire description of one entire purpose. To confine the publication to purposes of religion which are charitable is to change the whole character of the newspaper intended by the testator. Further, I do not know how the Court could secure the application of the fund to a publication of that character. I cannot agree with the further suggestion that the gift of income for "Catholic education, or any good object the Hierarchy may decide, until sufficient funds are in hand, to found the daily paper" was good, and with the help of s. 131 of the Property Law Act 1928 might be treated as the sole and sufficient object to which the fund should be devoted perpetually. This gift of income is, in my opinion, a dependent relative gift attendant upon the gift of corpus. It would defeat the intention of the testator to give it the character of a substantive gift of the fund.
I therefore think the appeal from the decision of the Supreme Court declaring the gift void should be dismissed.
This makes it necessary to consider the appeal from the declaration of the Supreme Court as to the incidence of debts, probate and estate duty and legacies. I have had the advantage of reading the judgment of my brother Dixon on this subject and agree with it.
The appeal, therefore, from the declaration in answer to the tenth question in the summons should be allowed, and the question, except as to probate, estate and succession duty should be answered in the manner suggested by my brother Dixon.