Royal North Shore Hospital of Sydney v. Attorney-general (NSW)

60 CLR 396

(Judgment by: RICH J)


High Court of Australia

Judges: Latham CJ

Rich J
Starke J
Dixon J

Subject References:
Extension of technical education in State schools
Bequest for essay
Failure of bequest

Hearing date: 29 April 1938; 2 May 1938; 3 May 1938; 4 May 1938
Judgment date: 19 August 1938


Judgment by:

The testator, whose death occurred as far back as 1909, made elaborate provisions by his will for a public essay competition to be inaugurated after the death of his sister, which has recently taken place. A reading of the provisions makes it plain that they are inspired by a desire to promote objects to which, according to the testator, he had in his lifetime directed public addresses and writings of his own. The complicated scheme which he sets out in his will does not strike the mind as particularly well calculated to enlist public support for his ideas, although, no doubt, if it were faithfully carried out it would involve the periodical appearance before the public of the testator's name and works, which, however, we must take to be but a subsidiary or attendant incident of the scheme. But the plan cannot be faithfully carried out; for the body to which its execution has been intrusted by the will declines to have anything to do with it. We have to decide what is the consequence of this refusal on the part of the institution. I do not propose to restate the nature of the scheme, which sufficiently appears in the judgment under appeal and other judgments to be delivered in this court. The consequence, in my opinion, is not that the whole provision fails so that there is a lapse. I think that it appears from the nature of the testator's detailed directions that his main or primary object was to propagate the three principles to which he refers, namely, the diminution of infant mortality in Australia, the improvement of the dietary habits in Australia and the spread of technical education in State schools. The method by which he sought to accomplish his purpose was by establishing a biennial competition for a money prize for the best essay expounding these principles and by having the essay read to such audience as might be induced to attend by the absence of any fee for admission and the prospect of the proceedings closing early. The machinery he selected for carrying out this essay competition was the organization of the Sydney Mechanics School of Arts-the institution which has declined to perform the task. On the whole I think the main purpose was not dependent upon either the essay competition as the method or the Sydney Mechanics School of Arts as the machinery. There sufficiently appears, I think, a main purpose that the principles shall be propagated to which the selected mode of execution is not indispensable. But I think that the very elaborate directions to the Sydney Mechanics School of Arts show that its participation in the essay competition is made so much a part of the scheme that no independent intention can be imputed to the testator of establishing an essay competition unless it was inaugurated under the authority of the Sydney Mechanics School of Arts. I am, therefore, of opinion that the refusal of that body results in a failure of the essay competition but not of a gift for the main purposes I have described, i.e., the promotion of the three objects the testator has stated, if those purposes are, as I think they are, charitable. The only serious attack upon their character was based upon the contention that they are inseparable and that the extension of the teaching of technical education in State schools was a political object. This contention, I think, drives to an absurd conclusion a somewhat vague and indefinite but well-known objection to gifts for public purposes. When it is said that a gift for political purposes is not charitable it cannot be meant that the advancement of every public object even if religious, eleemosynary or educational ceases to be charitable if the State is concerned in or affected by the result. I cannot agree that the third of the income which is the subject of a directed accumulation is to be accumulated for no charitable purpose. I think that this third is stamped with the charitable purpose as well as the rest. The annuity of PD10 a year given to the School of Arts is difficult to classify but it seems inseparable from the essay competition and resembles a gift to an executor made on the assumption that he does not renounce. I think that the institution must be taken to have rejected the benefit of the PD10 when it rejected the burden of the essay competition.

In my opinion the appeal fails.

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