Royal National Agricultural and Industrial Association v. Chester and Ors

3 ALR 486

(Judgment by: McTiernan J, Menzies J, Mason J) Court:
High Court of Australia

McTiernan J

Menzies J

Mason J

Hearing date: 6 June 1974, Brisbane
Judgment date: 30 July 1974


Judgment by:
McTiernan J

Menzies J

Mason J

Edward Chester, deceased, a retired poultry farmer who was a pigeon fancier, left a will bequeathing the residue of his estate to the Royal National Agricultural and Industrial Association for the purpose of applying the income to be derived therefrom "in improving the breeding and racing of homer pigeons". The validity of this gift has been challenged by the next-of-kin of the testator. It is common ground that the gift fails for perpetuity unless it is for a charitable purpose in the legal sense. Wanstall SPJ held that it is not. This appeal has been brought against that decision.

The Association, which is itself a charitable body, submitted to the Court a wealth of evidence to the effect that homing pigeons have been and can be used in war and peace to carry messages and that their instinctive capacity to return from any point of release to their home lofts is an unsolved problem of scientific interest. The Association also submitted a scheme that it would carry out in applying the income of the bequest. As to this the learned judge said: "In essence the scheme sought to apply the income to research into breeding problems, into the homing characteristic and the ability to navigate and orientate, into diseases and their cure, in importing better stock, in educating breeders and for providing prizes for the winners of races held under conditions designed to test and further those aspects of research. However correct and laudable such applications of the trust property may be, the plain fact is that the testator's words do not so limit its use, but permit others, for example the use of the whole income for the provision of racing facilities and trophies."

The problem, as his Honour correctly saw, is not whether the income could, consistently with the will, be used for purposes charitable in a legal sense; rather, it is whether the will requires that the income must be used for purposes that are charitable so that its use for any other purpose would be outside the words:in improving the breeding and racing of homer pigeons".

The very words of the bequest indicate that the testator had in mind the close relation between the breeding and the racing of pigeons, and evidence that the racing skill of the birds is the test of their good breeding explains the necessary interaction of breeding and racing.

It was argued for the Association that it was only racing as an adjunct to breeding that could be supported by the bequest. Without deciding that the bequest is so limited, we are prepared to consider the question upon the footing that it is with the consequence that the bequest would be confined to support breeding for racing and to support racing which tests breeding. The emphasis remains, however, upon racing, for "homer pigeons" are racing pigeons. Is then a gift for the breeding and racing of pigeons, to put the matter compendiously, charitable in the legal sense?

To justify an affirmative answer, it seems to us that it must, at least, be found that the breeding of racing pigeons is a purpose both beneficial to the community and within the spirit and intendment of the preamble to the statute 43 Eliz I, c 4. The House of Lords' decision in Williams Trustees v Inland Revenue Commissioners [1947] AC 447 ; [1947] 1 All ER 513 and Scottish Burial Reform and Cremation Society v Glasgow Corporation [1968] AC 138 ; [1967] 3 All ER 215 , provide modern authority that the existence of these two elements is both necessary and sufficient to warrant the conclusion that a particular purpose is charitable in law. This Court so decided in Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation (1971) 125 CLR 659 ; [1972] ALR 127 ; see Barwick CJ (125 CLR at 667 and 669; [1972] ALR at 132 and 134).

It may be that in a general way the breeding of pigeons for racing is a purpose beneficial to the community. It provides recreation for quite a number of pigeon fanciers; it produces birds which are interesting, beautiful, and may at times be useful as a means of communication; it affords opportunity for the scientific study of the birds' remarkable homing instinct.

It is when the inquiry turns to the question whether the breeding of racing pigeons is within the spirit and intendment of the statute 43 Eliz I, c 4 that the case of the appellant plainly fails. We find no justification for deciding that the breeding of racing pigeons is a purpose of the kind instanced in the preamble of the statute. An examination of the judgments of their Lordships of the House of Lords in Scottish Burial Reform and Cremation Society v Glasgow Corporation , supra, indicates the nature of the inquiry. There, in the Court of Session, a society for the promotion of cremation was regarded by the majority as existing for a purpose beneficial for the community, but that purpose was not regarded as within the spirit and intendment of the preamble of the statute 43 Eliz I, c 4. It was upon this latter point that the House of Lords came to a different conclusion, holding that cremation was within the statute principally because it had been established by previous decisions that trusts for burial grounds were within the preamble and that the intendment which brought burial grounds within it would do the same for cremation. Lord Wilberforce perhaps went further. After deciding that the provision of facilities for cremation was for the benefit of the community he treated the second problem in this way ([1968] AC at 138; [1967] 3 All ER at 224): "First, it may be said that the same evolutionary process which has carried charity from the 'repair of churches' to the maintenance of burial grounds (i) in a churchyard and (ii) in a cemetery extended from a churchyard should naturally carry it further so as to embrace the company's objects. Secondly, and more generally, the company's objects themselves may directly be seen to be within the preamble's spirit. The group 'repair of bridges, ports, havens, causeways, churches, sea banks and highways' has within it the common element of public utility and it is of interest to note that the original label of Lord Macnaghten's fourth category 'other purposes beneficial to the community' affixed by Sir Samuel Romilly in Morice v Bishop of Durham (1805) 10 Ves 522 at 532, was '... the advancement of objects of general public utility.' In this context I find it of significance that Parliament in 1902 by the Cremation Act of that year placed cremation, as a public service on the same footing as burial.

"I regard, then, the provision of cremation services as falling naturally, and in their own right, within the spirit of the preamble. "

Applying either method of approach to the problem here, it seems to us that the breeding of pigeons for racing cannot, either by analogy or by reason of the character of the activity itself, be said to be of benefit to the community in a sense within the preamble.

The attention of the Court was drawn by counsel for the appellant to general language used by members of the Court of Appeal in Incorporated Council of Law Reporting for England and Wales v Attorney-General [1971] 3 All ER 1029 ; [1972] Ch 73, in particular that of Russell LJ at 88 and 89, and that of Sachs LJ at 94 and 95, which, it was contended, justified bringing within the ambit of the preamble any purpose beneficial to the community unless there is some particular reason for excluding it from the conception of what is charitable. Such a development of the law would certainly go beyond any decision of the House of Lords or of this Court and would, we think, require consideration of authorities to the effect that gifts for benevolent or philanthropic purposes are too wide to be charitable. It is our opinion that here the Court should not go beyond the decisions of the House of Lords and of this Court to which reference has been made, notwithstanding our sympathetic understanding of any lack of enthusiasm that there may be for what now appears as an unnecessary restriction imposed by law upon the capacity of a testator to support with his bounty purposes which seem good to him and do not offend against the law. That next-of-kin whom the testator chose not to make the objects of his bounty should benefit at the expense of an activity which he enjoyed and wished to prosper may well be thought out of keeping with the sentiments prevailing in the days of Elizabeth II. Perhaps the law is in need of reform. However this may be, it is our opinion that, in whatever way the matter may be approached, the conclusion must be that the breeding and racing of pigeons does not fall within the intendment of the preamble.

In the course of reaching the conclusion under appeal, the learned judge considered the cases in which it has been held that to encourage a sport is not charitable: Re Nottage [1895] 2 Ch 649; [1895-9] All ER Rep 1203, and Peterborough Royal Foxhound Show Society v Commissioners of Inland Revenue [1936] 2 KB 497 ; [1936] 1 All ER 813 This his Honour did in answer to an argument "that the object of the trust could serve a purpose useful in both military and civil defence". His Honour referred to the cases to emphasize that, although the side effects of the gift may indirectly serve such purposes, the promotion of such purposes is not the direct and necessary object of the bequest. The cases were properly regarded as instances of the application of the rule that, if a gift permits applications for uses which are not charitable, it is not charitable in the legal sense. Although we have put our decision upon a somewhat broader basis, we do agree with the learned trial judge that the provision of racing facilities and trophies would certainly be within the discretion of the trustee and that such an application of the income of the estate would not be for charitable purposes.

In our opinion the gift in question is not for charitable purposes and the appeal should be dismissed.