Re Bryning Deceased

[1976] VR 100

(Judgment by: Lush, J) Court:
Supreme Court of Victoria

Lush, J

Subject References:
Gift to "Australian Aboriginal League" to be applied "for the benefit of aboriginal women in Victoria"
League in existence at date of will but absorbed into Aborigines Advancement League prior to death of testatrix
Charitable gift
"Aboriginal women"
Meaning of
Not restricted to aboriginal women of full blood
Preparation of scheme appropriate to circumstances.

Judgment date: 24 September 1975

Judgment by:
Lush, J

This is an originating summons seeking determination of questions of construction arising under the will of Grace May Bryning. The testatrix died on 18 July 1970. The plaintiff in the proceedings is the Public Trustee; the executor appointed by the will. The first defendant, who is sued in a representative capacity, is the Director of the Aborigines Advancement League (Victoria), the second defendant, also sued in a representative capacity, is one of the next of kin of the testatrix, and the third defendant is the Attorney-General.

The will is dated 7 June 1946 and the words in it from which the questions arise are these (I omit certain words which are not material): "I give devise and bequeath the whole of my estate, real and personal, to my trustee upon trust to sell, call in and convert the same into money and subject to the payment of my debts, funeral and testamentary expenses to pay the balance then remaining of my estate to the Australian Aboriginal League of 25 Fergie Street, North Fitzroy, to be applied for the benefit of aboriginal women in Victoria."

The Australian Aboriginal League was founded in about 1927. No written constitution of it was placed before me in evidence, but its objects were stated as being the assisting of aboriginal men and women in need. In 1957 there seems to have been a rift or a revolt in this organization, which resulted in the formation of a new body, the Aborigines Advancement League (Victoria), which was joined by a number of former members of the Australian Aboriginal League, the then office bearers of that society, however, continuing to keep it in existence.

By 1962 a process of reconciliation had begun and the constitution of the Aborigines Advancement League (Victoria) provided membership on the council for delegates of the Australian Aboriginal League. By 1969 the old league had, it seems, been absorbed to the extent that there was no point in the providing of seats on the council for delegates from it and a resolution was passed amending the constitution of the new league by deleting this provision.

The objects of the aborigines Advancement League (Victoria) are set out in its constitution in four paragraphs. They are:--

"(a) to establish a general policy for advancement of all Australian people of aboriginal descent;
(b) to provide benevolent relief to indigent people of aboriginal descent;
(c) to provide opportunity for aboriginal children to continue their education as far as their capabilities permit: to this end to provide assistance for aboriginal families and/or children in necessitous circumstances. A special fund shall be set up for this purpose;
(d) to acquire, provide and maintain hostels for aboriginal people who are in necessitous circumstances."

The questions raised by the originating summons can be dealt with seriatim.

Question 1 is: "Upon the proper construction of the will of the deceased is CL(3)"--that is the clause from which I quoted the relevant parts-- "expressed to be for a purpose that is charitable in law?"

Mr. Ostrowski appeared for the next-of-kin, the only party concerned to argue that the purpose was not charitable, and he conceded, subject to his submissions as to the answering of Question 2(b), that the answer to Question 1 must be "yes".

This concession is, if I may say so correct. In Re Mathew, [1951] VLR 226 at p. 232 O'Bryan, J., in dealing with a similar problem, said: "Australian aborigines are notoriously in this community a class which, generally speaking is in need of protection and assistance. This has been recognised in various ways by the Legislature."

He accordingly held that the gift which was under consideration in that case was a charitable gift.

That decision does not lead to the result that aborigines are to be classified perpetually as in need of protection and assistance. It is a decision that they were so in 1949 or 1951.

The listing in the affidavit of Phillip Eric Felton, a social worker and social anthropologist, of special legislative provisions, including Act No. 6086, the Aborigines Act 1957, setting up the Aboriginal Welfare Board, and Act No. 7574, the Aboriginal Affairs Act 1967, creating a Ministry of Aboriginal Affairs and the Aboriginal Affairs Advisory Council, of a number of organizations which since 1950 have been formed or been active in assisting aborigines or a section of them in some aspect of life and of various activities of the Commonwealth Government indicates that both in fact and in the general view of the community they are still to be so regarded today. Accordingly, I hold that the decision in Re Mathew, supra, is still effective in today's conditions and that Question 1 should accordingly be answered "yes".

Question 2 is prefaced by the words "If the answer to Question 1 be yes" and then propounds two questions. The first of these is: "(a) is the Aborigines Advancement League (Victoria), as successor to the Australian Aboriginal League, a body which is capable of carrying out the terms of the trust in CL(3) of the will?"

In the result it is unnecessary for me to examine this question. A charitable trust will not be allowed to fail for want of trustees. It would have been necessary to go into this question closely only if the League had insisted that the will constituted a complete charitable trust of which it was appointed trustee and which it wished to administer unaided and without outside interference.

Mr. Gillard, who appeared for the party representing the League, having stated that the case was one in which a scheme was appropriate, any scheme ordered can make the necessary provision for trustees.

Accordingly, I do not propose to answer Question 2(a).

Question 2(b) is: "(b) who are to be included in the class 'aboriginal women in Victoria'?"

The problem which was argued under this question is whether the gift in the will is restricted to benefiting those of full blood. If it is, an enquiry will have to be ordered which might reveal that there are so few persons involved that the gift either might cease to be charitable or, as a charitable gift, might fail either as impractical or for want of objects.

In Victorian legislation since the Aborigines Protection Act 1886 "aboriginal" or "aborigine" has been so defined as to include in some circumstances persons of mixed blood. In the Aboriginal Affairs Act 1967 and the Aborigines Lands Act 1970 "aborigine" means a person descended from an aboriginal native of Australia, a definition which, in substance, was adopted in legislation from 1957 onwards. The dictionary meaning of the term, however, is that the word denotes an original inhabitant of a country, as opposed to colonists. It may be implicit in this that it means persons whose blood, after the arrival of colonists, remains unmixed. In an anthropological or genetic context this would, I think, be so. In a social context it may be open to question.

Mr. Ostrowski argued that the true meaning of the words "aboriginal women" was that derived from the dictionary, that it should be given its true meaning unless there was reason to give it some other meaning, and there was here no such reason. The argument was simple and powerful and its consequence was that there should be an order for an enquiry with the possible results to which I have already referred.

Support for the argument was claimed from an unreported decision of Gillard, J., in Re Barry, which was given on 30 May 1969. The gifts in that will (I have seen the full terms of the will in copy form only, but I infer from the language of the will that it was either a holograph will or, at least, an entirely home-made will) were these: "I give devise and bequeath the above Clarence Hedley Waite the right to house his furniture and belongings in and the occupation residence of the property situated at 28 Pine Avenue, Elwood, S3, Victoria, which at the death of Clarence Hedley Waite or if he decides not to occupy the said property then the above property to be used by the aboriginals as a holiday hostel run by an organisation for their welfare. The said property must not be sold to outsiders for gain, but a hostel may be erected for aboriginals only."

The records of the case do not reveal what arguments were put and the question of construction which finally proved to be decisive of the case is the subject of the following words only in the reasons for judgment: "In this context aboriginals means the full-blooded indigenous population of Australia."

The subsequent history of this case may be seen in the report of an appeal, or an attempt to appeal, to the Full Court, which is to be found in [1971] VR 395. The Full Court holding that the appeal was not, in respect of the question of interpretation, in order, did not deal with the question of construction.

My function is to construe the words of this will in their ordinary and natural meaning. I have already acknowledged the force of Mr. Ostrowski's argument relating to the adoption of the precise meaning of words if that can be ascertained. In this country, in everyday usage, the meaning of the words "aborigine" and "aboriginal" varies. In contrast, for instance, with the word "half-caste" as in the old statutes, they undoubtedly mean a man of the full blood, but when used to describe a general body of persons, without adjectives and without contrasting words or phrases, I do not think that they have had this meaning for many years.

It must, I think, be remembered that this is a word that is probably much more widely used in this country than in other English-speaking countries. In this country it has certainly been used to describe persons in groups or societies irrespective of the question of mixture of blood. This view is supported by the consideration that for a long time it has been widely known that there remain very few persons of the full blood.

In interpreting the present gift, obviously intended to benefit the women of a group or community generally regarded as in need of assistance, it would in my opinion be contrary to the natural meaning of the words as they are used in this country, and contrary to the testator's intention to say that benefits are conferred only on those of the full blood. This view is supported as a matter of words by the linking of the gift to the name of an organization presumably known to the testatrix, a name which includes the word "aboriginal" and which I think never seems to have held itself out as concerned only with those of the full blood.

It is unnecessary for me to discuss the decision in Barry's Case further. It may be that the use of the demonstrative article "the" before the word "aboriginals" in that case gives the gift there the mark of bearing a narrow meaning. It is sufficient to say that I do not think that the present will should be given the same interpretation.

In answering Question 2(b), I propose to borrow the definition used in the 1967 and 1970 Acts. The only question argued has been whether the gift in this will is limited to those of the full blood and such an answer adequately deals with the point argued. The answer, however, is not to be regarded as an exhaustive definition of aboriginal women. Such a definition would, I think, involve social considerations of identification. I propose to direct a scheme and I commend to those preparing it a consideration of para. 9 of Mr. Felton's affidavit.

Question 3 is: "Are the next of kin of the deceased entitled to the estate of the deceased?" The answer to this question must, in the light of what I have said, be "No".

Question 4 is: "Ought inquiries be directed as to any of the matters raised by these questions and, if so, for an order for such inquiries?"

This question contemplates the ordering of an inquiry into the number of available beneficiaries of the full blood, if the will were so interpreted, a course which was followed in Barry's Case. In the light of what I have said, the answer to question 4 is that no inquiry should be directed.

Question 5 is: "Should a scheme be settled for the administration of the trust in CL3 of the deceased's will?"

It was common ground at the Bar table that the scheme should be settled, and if I may say so, it is desirable for at least three reasons. The first is that the trusteeship can be given a more precise definition than could be derived from the will. The second is that it may legitimately be thought desirable to include in the scheme some further definition of the term "aboriginal women", though it must, of course, be a definition within and not unduly restrictive of the scope of those words as I have interpreted them in the course of giving these reasons. The third reason is that the amount of money available, some, I think, $37,000, does not appear as a matter of impression to be sufficient to support an entirely independent scheme. No material was placed before me indicating the possibility of obtaining Government contributions proportioned to the testatrix's gift, or, indeed, to any other financial aspects of the working out of the trust, but I contemplate that it may very well be necessary for the gift made by this will for practical purposes to be merged with other activities under the general auspices of the Aborigines Advancement League or with other testamentary trusts, and the scheme should, I suggest, allow flexibility to the trustees in carrying the trust into effect in collaboration with other trusts or other activities. The last two orders sought are representative orders.

The answers to the questions will be:--

Question 1. Yes.

Question 2(a). It is unnecessary to answer this question.

Question 2(b). Subject to such further definition, if any, as may be included in the scheme hereinafter directed to be brought in--Women descended from aboriginal natives of Australia and permanently or temporarily resident in Victoria.

Question 3. No.

Question 4. No.

Question 5. Yes.

I order that the defendant Stewart Murray, after consultation with the plaintiff and the Attorney-General, bring in a scheme for the administration of the trust.

Question 6. The order will be made as asked, except that the League will be described as "The Aborigines Advancement League (Victoria)".

Question 7. Order as asked.

The further consideration of the summons is adjourned until the scheme referred to in the answer to Question 5 is brought in. The plaintiff's costs and expenses, including reserved costs, will be taxed and paid or retained out of the estate. The costs of the other parties, including reserved costs, will be taxed as between solicitor and client and paid out of the estate.