Perpetual Trustee Co Ltd v Groth and Ors

(1985) 2 NSWLR 278

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(Decision by: Powell J)

Between: Perpetual Trustee Co Ltd
And: Groth and Ors

Court:

Judge:
Powell J

Subject References:
CHARITIES
CHARITABLE PURPOSES
Advancement of education
General public purpose
Ascertainment of
Benefit to appreciable class of persons
Bequest to establish, endow and maintain annual competition for portrait painting
Valid charitable trust
Other purposes beneficial to public

Case References:
Allsop, Re Gell v Carver - (1884) 1 TLR 4
Attorney-General v Trustees of National Art Gallery of NSW - (1944) 62 WN (NSW) 212
Bloomfield v Art Gallery of New South Wales Trust - (Helsham CJ in Equity, 23 September 1983, unreported)
Bowman v Secular Society Ltd - [1917] AC 406
British School of Egyptian Archaeology; Murray v Public Trustee - [1954] 1 WLR 546; [1954] 1 All ER 887
Chesterman v Mitchell - (1923) 24 SR (NSW) 108; (1923) 41 WN (NSW) 11
Compton, Re; Powell v Compton - [1945] Ch 123
Corelli, Re; Watt v Bridges - [1943] Ch 332
Cranston Deceased, Re; Webb v Oldfield - [1898] 1 IR 431
Davies v Perpetual Trustee Co (Ltd) - [1959] AC 439
Delius Will Trusts, Re; Emanuel v Rosen - [1957] Ch 299
Downing v Federal Commissioner of Taxation - (1971) 125 CLR 185
Dupree's Deed Trusts, Re; Daley v Lloyd's Bank - [1945] Ch 16
Good, Re; Harington v Watts - [1905] 2 Ch 60
Gray, Re; Todd v Taylor - [1925] Ch 362
Hopkins' Will Trusts, Re; Naish v Francis Bacon Society Inc - [1965] Ch 669
Hummeltenberg, Re; Beatty v London Spiritualistic Alliance Ltd - [1923] 1 Ch 237
Inland Revenue Commissioners v City of Glasgow Police Athletic Association - [1953] AC 380
Kearins v Kearins - (1956) 57 SR (NSW) 286; (1956) 74 WN (NSW) 63
Levien, Re; Lloyds Bank Ltd v Worshipful Co of Musicians - [1955] 1 WLR 964; [1955] 3 All ER 35
Lowin (deceased), Re; Perpetual Trustee Co Ltd v Robins - [1965] NSWR 1624; reversed [1967] 2 NSWR 14
Macduff, Re; Macduff - [1896] 2 Ch 451
McGovern v Attorney-General - [1982] 1 Ch 321
Mariette, Re; Mariette v Aldenham School Governing Body - [1915] 2 Ch 284
Meyers, Re; London Life Association v St George's Hospital - [1951] Ch 534
Nottage, Re; Jones v Palmer - [1895] 2 Ch 649
Ogden, Re; Taylor v Sharp - (1909) 25 TLR 382
Oppenheim v Tobacco Securities Trust Co Ltd - [1951] AC 297
Perpetual Trustee Co Ltd v Sydney Mechanics School of Arts - (1937) 38 SR (NSW) 22; (1937) 55 WN (NSW) 43
Pinion, Re; Westminster Bank Ltd v Pinion - [1965] Ch 85
Public Trustee v Nolan - (1943) 43 SR (NSW) 169; (1943) 60 WN (NSW) 84
Royal Choral Society v Inland Revenue Commissioners - [1943] 2 All ER 101
Ryland v Federal Commissioner of Taxation - (1973) 128 CLR 404
Shakespeare Memorial Trust, Re; Lytton (Earl) v Attorney-General - [1923] 2 Ch 398
Shaw, Re; Public Trustee v Day - [1957] 1 WLR 729; [1957] 1 All ER 745
Shaw's Will Trusts, Re; National Provincial Bank Ltd v National City Bank Ltd - [1952] Ch 163
Smith v Kerr - [1902] 1 Ch 774
Somerville v Attorney-General for the Commonwealth (sub nom Verge v Somerville) - (1921) 21 SR (NSW) 450; (1921) 38 WN (NSW) 118; [1924] AC 496
Spensley's Will Trusts, Re; Barclay's Bank Ltd v Staughton - [1954] Ch 233
Taylor v Taylor - (1910) 10 CLR 218
Wedgwood, Re; Allen v Wedgwood - [1915] 1 Ch 113
Whicker v Hume - (1858) 7 HLC 124; 11 ER 50
Williams' Trustees v Inland Revenue Commissioners - [1947] AC 447
The following cases are cited in the unreported judgment: -
Buck, Re; Bruty v Mackey - [1896] 2 Ch 727
Lacy, Re - [1899] 2 Ch 149
Lead Co's Workmen's Fund Society, Re - [1904] 2 Ch 196
McQuillan v Bodkin - (1960) AR (NSW) 373
Mead's Trust Deed, Re - [1961] 1 WLR 1244; [1961] 2 All ER 836
Moore v Doyle - (1969) 15 FLR 59
Pease v Pattinson - (1886) 32 Ch D 154
Printers and Transferrers Amalgamated Trades Protection Society, Re - [1899] 2 Ch 184
Spillar v Maude - (1881) 32 Ch D 158(n)
Steuart v Oliver - (1971) 17 FLR 99
Wheatley v Federated Ironworkers Association of Australia - (1959) 60 SR (NSW) 161; (1959) 76 WN (NSW) 727
Williams v Hursey - (1959) 103 CLR 30
The following additional cases were cited in argument: -
Associated Artists Ltd v Inland Revenue Commissioners - (1956) 1 WLR 752; (1956) 2 All ER 583
Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) - (1940) 63 CLR 209
Chesterman v Federal Commissioner for Taxation - [1926] AC 128
Diplock's Estate, Re; Diplock v Wintle (sub nom Ministry of Health v Simpson) - [1948] Ch 465; [1951] AC 251
Income Tax Special Purposes Commissioners v Pemsel - [1891] AC 531
Incorporated Council of Law Reporting for England and Wales v Attorney-General - [1972] Ch 73
Inland Revenue Commissioners v Baddeley - [1955] AC 572
Inland Revenue Commissioners v Scott; Re Bootham Ward Strays, York - (1892) 2 QB 152
National Anti-Vivisection Society v Inland Revenue Commissioners - [1948] AC 31
Perpetual Trustee Co Ltd v John Fairfax & Sons Pty Ltd - (1959) 76 WN (NSW) 226
Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corporation - [1968] AC 138
Strakosch, Re; Temperley v Attorney-General - [1949] Ch 529
Stratton v Simpson - (1970) 125 CLR 138
Thompson v Thompson - (1844) 1 Coll 381; 63 ER 464
Town and Country Planning Act 1947, Re; Crystal Palace Trustees v Minister of Town and Country Planning - [1951] 1 Ch 132

Hearing date: 21 June 1985
Judgment date: 8 July 1985

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Decision by:
Powell J

It will, perhaps (but see Davies v Perpetual Trustee Co (Ltd) [1959] AC 439), come as a matter of considerable surprise to many that, despite the fact that the bequest with which I am concerned to deal is contained in a will made as long ago as 15 March 1916; despite the fact that the testator died as long ago as 10 September 1919; despite the fact that prize contemplated by the subject bequest has been competed for - and, with the exception of two years, 1964 and 1980, awarded - annually since 1921; despite the fact that the subject bequest has been the subject of consideration by this Court on at least two occasions (Attorney-General v Trustees of National Art Gallery of NSW (1944) 62 WN (NSW) 212; Bloomfield v Art Gallery of New South Wales Trust (Helsham CJ in Equity, 23 September 1983, unreported)), the former of which occasions involved a suit in which the Attorney-General - whose counsel, even then, was of no mean stature in the law - proceeding by information on relation, alleged that the then defendant trustees - whose counsel, too, was of no mean stature - were, under the terms of the bequest, charged with the administration of a charitable trust, a breach of which was then threatened; I am now called upon to determine whether the bequest which provided for the establishment of "The Archibald Prize" for portraiture constituted a valid charitable trust.

The bequest in question is, as is probably well-known, contained in the will of John Feltham Archibald. By his will, the testator, after providing for the appointment of the plaintiff as his executor and as trustee of his estate, and after making three specific bequests to the New South Wales National Art Gallery (sic) provided that his residuary estate be divided into fifty equal shares to be held and applied upon the trusts thereinafter provided. Having then made provision for thirty of such shares to be held upon trust for certain relatives, friends and "old and faithful servant(s)", the testator then provided:

"10.

As to five other of such shares I DIRECT my trustees to hold the same.

(a)

Upon trust during a period embracing the life of the survivor of the seven legatees hereinbefore mentioned by name and twenty years after to pay the income thereof to the trustees of the New South Wales National Gallery to provide an annual prize to be styled 'The Archibald Prize' for the best portrait preferentially of some man or woman distinguished in Art Letters Science or Politics painted by any artist resident in Australasia during the twelve months preceding the date fixed by the trustees for sending in the pictures the trustees to have the right to exhibit such winning picture in the said gallery for a space of not more than two months from the date so fixed.

If during any such twelve months no competing picture shall in the opinion of the trustees be painted worthy of being awarded a prize then such income shall be accumulated and invested as hereinafter authorised with liberty to the trustees at any part of such period to purchase by such accumulations or part thereof any portrait that may have won any prize so given such exhibited or purchased prize to bear a label endorsed 'The Archibald Prize'.

AND I DECLARE that if during the said period it shall be decided or otherwise established to the satisfaction of my trustees that this bequest is a good charitable bequest then I DIRECT that the said period shall become perpetual and my trustees shall forthwith transfer the said five shares to the trustees for the time being of the said gallery to be held with any accumulations of income upon the trusts indicated as for a perpetuity.

But if it shall not be so decided or established within such period then at the expiration thereof I DIRECT my trustees to transfer the said five shares to the said Benevolent Fund (and if such fund be not then in existence then to such fund or society for the relief of distressed Australasian journalists as my trustees shall select the receipt of the treasurer of any such fund or society to be a complete discharge) but the trustees of the gallery may retain any accumulations of income then in their possession for the use of the said gallery."

Thereafter, the testator provided:

"13.

AND I DECLARE that if any of the provisions of this my Will with regard to any share in my estate shall for any reason fail to take effect then the share shall not lapse but shall fall back into residue and follow the devolution of the effective provisions of my residuary estate and the number of shares into which I have divided my residuary estate shall as regards the shares so falling back into residue be altered accordingly."

As I have previously recorded, the testator died on 10 September 1919.

Thereafter, Probate No 96907 of the will of the testator was, on 10 October 1919, granted by this Court in its Probate jurisdiction to the plaintiff, then known as Perpetual Trustee Co (Ltd), as the executor and trustee named in the said will.

The testator's estate was sworn for Probate in the sum of £92,218.0.0. The evidence does not disclose what death or estate duties were levied in respect of the estate.

[His Honour then considered the evidence as to the position, in 1919, and in subsequent years in relation to the "Trustees of the New South Wales National Gallery" and "the said Benevolent Fund", that is, the "Benevolent Fund of the New South Wales Branch of the Australian Journalists Association".]

Sixty-four years have now passed since the Archibald Prize was first competed for in 1921, and in each of those years the Archibald Prize has been competed for, the number of entries, of more recent years, being such that the trustees have been obliged to restrict the number of portraits entered which are in fact exhibited. I offer no opinion as to the quality of the entries which have been submitted over the years, not merely because the field of portrait painting is one in which I can claim not the slightest expertise whatsoever, but, as well, because, as Roper J, as he then was, said in Attorney-General v Trustees of the National Art Gallery of NSW (at 214):

"... It is obvious that the awarding of the prize will normally involve the exercise of great delicacy of judgment, and it is to be expected that the opinion of the trustees themselves will not normally be unanimous and that that of the majority will not normally be received with unanimous accord by the whole body of artists and laymen who view the competing pictures with the idea of forming an opinion as to their respective artistic merits as portraits.

The question of which among a group of portraits painted by competent artists is the best will always be answered according to the individual tastes and propensities of the observer to whom it is directed. On such a question it would, I think, be safer to expect differences of opinion than to expect unanimity even among persons well qualified by training and experience to give a weighty opinion. In the course of the many competitions which have been held for the prize provided by this will, there must I think have been frequent occasions when some well- informed body of artistic opinion regarded one or more of the entries as being better than that chosen for the award."

Whatever may be one's personal view as to the quality of the portraits which have, over the years, been submitted for the prize, it seems to be accepted that there is no regular event in the programme of exhibitions at the Art Gallery that attracts as widespread interest as the exhibition of the entries for each year's Archibald prize. No doubt this interest is, at least in part, due to the controversies which, over the years have been engendered - of which controversies those caused by the award of the prize for 1943 to Sir William Dobell's portrait of Joshua Smith (Attorney-General v Trustees of National Art Gallery of NSW) and the disqualification from the 1975 competition of John Bloomfield's portrait of Tim Burstall (Bloomfield v Art Gallery of NSW) are, perhaps, the most well-known - but I would take leave to doubt that controversy, or the possibility of it, is the sole reason for the interest of those who attend each year's exhibition.

Only three further matters of fact need to be recorded; and these, only because of the stress which the first defendants seek to place upon them.

They are, first, that it is said that, since the art trend for about the last twenty-five years has been away from realism and towards abstract art, the popularity, within the art world, of portrait painting has been diminishing; second - and, semble, in consequence of this diminishing popularity - that, despite the increase in the number of entries to each competition for the prize, very few portrait artists continue to compete, and many of those who do compete are those whose primary interest are in other fields, as for example, landscape, or abstract, painting; and, finally, that the style of the paintings which, of more recent years, have been submitted, has changed dramatically.

These proceedings were commenced by summons filed 24 December 1984, to which summons the only parties-defendants were "Australian Journalists Association, New South Wales" (sic) and Her Majesty's Attorney-General in and for this State, and by which summons the plaintiff prayed the following substantive relief:

"1.

A determination whether upon the true construction of the last will and testament of Jules Francois Archibald deceased and in the events which have happened the gift in cl 10 of the said will to be administered by the trustees of the Art Gallery of New South Wales is:

(a)

A valid gift according to its tenor; or

(b)

Constitutes a valid charitable trust; or

(c)

Fails for impracticability, uncertainty or otherwise;

2.

An order that if the answer to 1(b) is yes, a scheme be settled to administer the trusts affecting the gift cy-pres ."

Later, the proceedings were amended by substituting for "Australian Journalists Association, New South Wales" as a party-defendant, "Denny Yvonne Groth, David Fullagar, Barry Porter, Gain (sic) Cantlon, Harold Corbett as Trustees of the Benevolent Fund of the Australian Journalists Association (sic)".

Having regard to the terms of cl 10 of the testator's will, one wonders why some sixty-five years were allowed to pass before any steps were taken to determine the validity, or otherwise, of the bequest provided for in that clause. However, that unexplained delay is but one of the odd features of the present proceedings. Thus, it is to be observed, first, that, as presently constituted, the proceedings are defective for want of parties, if only because the Art Gallery of New South Wales Trust, which has a direct interest in the outcome of the proceedings, has not been joined as a party-defendant; second, that, although the summons contemplates that it is possible that the court might hold that the bequest was and is invalid, the summons does not seek a determination of the validity or otherwise of the primary gift over or the ultimate gift over; third, that, notwithstanding that it might be arguable that the testator died intestate as to the five shares in the residuary estate which are in question, no person has been joined as a party-defendant to represent the interest of the testator's next-of-kin; fourth, that when the proceedings ultimately came on for hearing, counsel for the plaintiff did not content himself with the adopting of the conventional role of a trustee's counsel, that is, "submitting the question", but, rather, submitted an extensive argument, supported by a reference to many authorities, in favour of the view that the gift constituted a valid charitable trust; and, finally, that despite his submission, and despite the form of the relief claimed in the summons, counsel for the plaintiff did not then submit that the case was one which called for the settlement of a scheme cy-pres .

Despite the fact that, when the proceedings were called on for hearing, I drew attention to the fact that the proceedings, as constituted, were defective for want of parties, and that the relief claimed was inadequate to dispose of the questions raised by cl 10 of the testator's will, no application to have the proceedings further amended was made. Although the reason for the failure to make any application to amend was not articulated, I assume that there was some concern at the delay which might ensue, and the possible effect of any failure to have the question whether the gift "(was) a good charitable bequest" decided prior to the expiration of twenty years from the death of Gladys Archibald. Whatever be the reason, however, the proceedings have been left in an unsatisfactory state, and one in which, unless - and, then, only if I might legitimately, and do, in fact, make all appropriate representa- tive orders - I am to determine that the bequest for the establishment of the Archibald Prize is a valid charitable bequest, I am not able to dispose of the present proceedings.

[His Honour then summarized the submissions of counsel.]

I turn to consider the principal question which is before me, namely, whether the bequest, or bequests, for the foundation and endowment of "The Archibald Prize", constitute, or constitutes, a valid charitable trust or trusts. I pose the question in this way, since it seems to me that the language of cl 10 of the will is such that could be construed in either of two ways:

1.

a bequest of income for the period defined, and a bequest of capital contingent upon it being decided, or otherwise established, within the defined period, that the bequests constitute a valid charitable bequest; or

2.

a bequest of capital and income, which bequest is defeasible unless it be decided, or otherwise established, within the defined period, that the bequest constitutes a valid charitable bequest.

But whatever be the correct construction to be applied to cl 10 of the will, it seems to me to be clear enough that the bequest or bequests cannot be sustained unless it, or each of them, constitutes a valid charitable trust. It is clear enough that the bequest was not, or the bequests were not, made payable to the trustees of the National Art Gallery to be dealt with as they might think fit (cf Public Trustee v Nolan (1943) 43 SR (NSW) 169; 60 WN 84) and that the income, when received, was, and the capital, if received, is, to be held by the trustees of the National Art Gallery - or, in the events which have happened, the Art Gallery of New South Wales Trust - upon trust for the purpose of establishing, endowing and perpetuating, "The Archibald Prize". Since, therefore, the intended trust was "a purpose trust", the bequest or bequests must fail unless the intended purpose was, or is, to be regarded, in law, as charitable - unless intended purpose of the bequest or bequests be held to be so, the fact that the bequest was, or the bequests were, intended to vest within the perpetuity period is irrelevant: cf Public Trustee v Nolan.

As is well-established, the meaning given by law to the word "charitable" is more extensive than that - "eleemosynary", or the relief of necessity, destitution, or helplessness - which it bears in common usage, and a purpose trust will now be regarded as "charitable" if it falls within one or other of four discrete classes:

1.

trusts for the relief of poverty;

2.

trusts for the advancement of education;

3.

trusts for the advancement of religion;

4.

trusts for other purposes beneficial to the community.

However, although all trusts which are to be regarded in law as charitable must fall within one or other of these classes, a trust which might be brought within one or other of these classes is not to be regarded as a charitable trust unless the trust is of a public nature, for the benefit of the public, and also capable, if need be, of being controlled by the court. As has been pointed out (Taylor v Taylor (1910) 10 CLR 218 at 238 per Isaacs J), what is a public general purpose must be ascertained from the conditions of the age in which the donor or testator lives, and, if a review of the authorities - which are numerous - can be said to establish any trend, then, that trend has been to enlarge the meaning of the word "charity" (see, for example, Re Cranston Deceased: Webb v Oldfield [1898] 1 IR 431 at 435 per Porter MR; at 446 per FitzGibbon LJ; at 452 per Holmes LJ; Re Wedgwood; Allen v Wedgwood [1915] 1 Ch 113 at 117 per Lord Cozens-Hardy MR; Taylor v Taylor, Somerville v Attorney-General for the Commonwealth (1921) 21 SR (NSW) 450 at 460; 38 WN 118 at 120, per Street CJ in Equity) that enlargement having been achieved over the years as the result of courts finding that the purpose of the trust in question, although not enumerated in the preamble to the Statute of Charitable Uses (43 Eliz c 4), is nonetheless analogous with the purposes there enumerated, and, thus, within the spirit and intendment of the Statute of Elizabeth.

It is clear, and, indeed, the contrary has not been argued, that the purpose sought to be achieved by the subject bequest, or bequests, cannot be regarded as falling within either of the first, or the third, of the classes of charitable trust which I have enumerated above; it following, that, if the subject bequest is, or the subject bequests are, to be held valid, it, or they, must be brought within the class of trusts for the advancement of education, or the class of trusts for some other purpose beneficial to the community.

So long only as they have the necessary public nature (Re Compton; Powell v Compton [1945] Ch 123; Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297 at 306 per Lord Simonds) a trust for the advancement of education, or the propagation of learning, is a valid charitable trust, irrespective of the financial circumstances of those for whose benefit such a trust has been created. A trust merely to increase knowledge without propagating it, is, so some of the authorities (Whicker v Hume (1858) 7 HLC 124 at 155; 11 ER 50 at 63; Re Macduff; Macduff v Macduff [1896] 2 Ch 451 at 473; Re Shaw; Public Trustee v Day [1957] 1 WLR 729 at 738; [1957] 1 All ER 745 at 753) would suggest, not a valid charitable trust, but that suggestion is not one which has met with universal acceptance: see, for example, Re Hopkins' Will Trusts; Naish v Francis Bacon Society Inc [1965] Ch 669.

Educational purposes extend beyond the advancement of education in general, or the propagation of the whole body of human knowledge, and trusts for the advancement of education in some particular field, or for the propagation of knowledge in some particular branch of study, have been unheld; such trusts have extended to education in law (Smith v Kerr [1902] 1 Ch 774), drama (Re Shakespeare Memorial Trust; Lytton (Earl) v Attorney- General [1923] 2 Ch 389), music (Re Levien; Lloyd's Bank Ltd v Worshipful Company of Musicians [1955] 1 WLR 964; [1955] 3 All ER 35), archaeology (Re British School of Egyptian Archaeology; Murray v Public Trustee [1954] 1 WLR 546; [1954] 1 All ER 887), and many other disciplines. Although some of the earlier authorities (Re Allsop; Gell v Carver (1884) 1 TLR 4; Re Ogden; Taylor v Sharp (1909) 25 TLR 382) contain suggestions that the fine arts are not objects of charity, more recent cases (see, for example, Royal Choral Society v Inland Revenue Commissioners [1943] 2 All ER 101; Re Shaw's Will Trusts; National Provincial Bank Ltd v National City Bank Ltd [1952] Ch 163; Re Levien; Lloyd's Bank Ltd v Worshipful Company of Musicians; Re Delius Will Trusts; Emanuel v Rosen [1957] Ch 299) would indicate that those suggestions, even if once valid, are no longer to be so regarded.

Nor are educational purposes to be restricted to teaching in the conventional sense, or, in the case of the performing arts, or the fine arts, the teaching or training of performers, or executants; in the latter cases, education includes, not only the teaching or training of performers or executants, but, as well, the improvement of appreciation of those arts by the general public (Re Shakespeare Memorial Trust; Lytton (Earl) v Attorney- General; Royal Choral Society v Inland Revenue Commissioners; Re Shaw's Will Trusts; National Provincial Bank Ltd v National City Bank Ltd; Re Levien; Lloyd's Bank Ltd v Worshipful Company of Musicians; Re Delius Will Trusts; Emanuel v Rosen) and the encouragement of additional contributions - as, for example, by the composition of new musical pieces (Re Lowin (deceased); Perpetual Trustee Co Ltd v Robins [1965] NSWR 1624) or by writing and research on matters musical (Re Levien; Lloyds Bank Ltd v Worshipful Company of Musicians) - to the performing arts or the fine arts. Educational purposes may be promoted in a variety of ways: see, for example, Re Mariette; Mariette v Aldenham School Governing Body [1915] 2 Ch 284; Re Gray; Todd v Taylor [1925] Ch 362; Kearins v Kearins (1956) SR (NSW) 286; 74 WN 63; including the endowment of competitions and the provision of prizes (see, for example, Chesterman v Mitchell (1923) 24 SR (NSW) 108; 41 WN 11; Perpetual Trustee Co Ltd v Sydney Mechanics School of Arts (1937) 38 SR (NSW) 22; 55 WN 43; Re Dupree's Deed Trusts; Daley v Lloyd's Bank [1945] Ch 16. Finally, it should be noted that, although the benefit to the public of any particular purpose sought to be achieved may be so apparent that no evidence of it will be needed (see, for example, Re Shaw's Will Trusts; National Provincial Bank Ltd v National City Bank Ltd (at 169)), in cases in which there may be a doubt it is open to the court to receive evidence on the matter (Re Dupree's Deed Trusts; Daley v Lloyd's Bank; Re Pinion; Westminster Bank Ltd v Pinion [1965] Ch 85).

As I have earlier recorded, those trusts for purposes beneficial to the community which have been held to be charitable have been held to be so because, being analogous with the purposes enumerated in the Statute of Elizabeth, they have been regarded as being within the spirit and intendment of the statute. The range of purposes which has been held to be of general public utility, and, thus, to be charitable, is extensive, and such as virtually to defy any attempt at orderly and systematic comparison. Thus, it has been held that gifts tending to encourage recruitment to the armed forces (Re Meyers; London Life Association v St George's Hospital [1951] Ch 534 at 544; Downing v Federal Commissioner of Taxation (1971) 125 CLR 185 at 198), to increase efficiency in the armed forces (Re Good; Harington v Watts [1905] 2 Ch 60; Re Gray; Todd v Taylor), to increase efficiency in the police force (Chesterman v Mitchell; Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] AC 380 at 391 per Lord Normand), to assist returned soldiers (Somerville v Attorney-General for the Commonwealth), for the relief of distress among former members of the armed services (Downing v Federal Commissioner of Taxation; Ryland v Federal Commissioner of Taxation (1973) 128 CLR 404) for the protection and benefit of animals (Re Wedgwood; Allen v Wedgwood) have been charitable. By contrast, trusts for the encouragement of sport, per se (Re Nottage; Jones v Palmer [1895] 2 Ch 649 - to provide annually a cup to encourage yachting), to provide hospitality or entertainment (Re Corelli; Watt v Bridges [1943] Ch 332; Williams' Trustees v Inland Revenue Commissioners [1947] AC 447; Re Spensley's Will Trusts; Barclay's Bank Ltd v Staughton [1954] Ch 233) or to achieve political ends (Bowman v Secular Society Ltd [1917] AC 406 at 442 per Lord Parker of Waddington; McGovern v Attorney-General [1982] Ch 321) have been held not to be charitable. However, although it may not be possible to fit those purposes of general public utility which have been held to be charitable into any orderly system of classification, it is, so the authorities suggest, possible to say of all such purposes that they share certain common characteristics.

Thus, as FitzGibbon LJ said in Re Cranston; Webb v Oldfield (at 446) in a passage later adopted with approval by Lord Cozens-Hardy MR and Kennedy LJ in Re Wedgwood; Allen v Wedgwood (at 117, 119) and by Street CJ in Equity in Somerville v Attorney-General for the Commonwealth (at 461; 120):

"... The essential attributes of a legal charity are, in my opinion, that it shall be unselfish - ie for the benefit of other persons than the donor - that it shall be public, ie that those to be benefited shall form a class worthy, in numbers or importance, of consideration as a public object of generosity, and that it shall be philanthropic or benevolent - ie dictated by a desire to do good. We must remember, in cases of the fourth category, that these conditions have been held to be satisfied, in cases of the second and third, by gifts for the benefit of very small sects and sections. Under those circumstances, being bound to clear our minds of misericordia, I can not reconcile the cases by anything short of adopting the principle that any gift which proceeds from a philanthropic or benevolent motive, and which is intended to benefit an appreciably important class of our fellow-creatures (including, under decided cases, animals), and which will confer the supposed benefit without contraven- ing law or morals, will be 'charitable'."

It is against the background of the principles which I have discussed above that I turn to consider the question of the validity of the bequest or bequests to the trustees of the New South Wales National Art Gallery.

At the outset it should be noted that, although, in deciding this question, the court is not bound by either the motive or opinion of the testator (Re Hummeltenberg; Beatty v London Spiritualistic Alliance Ltd [1923] 1 Ch 237; Re Pinion; Westminster Bank Ltd v Pinion (at 93) per Wilberforce J, as he then was; (at 105) per Harman LJ; (at 107) per Davies LJ; (at 108) per Russell LJ), the clear impression that one obtains from the testator's will is that it was his wish that, once the beneficiaries - and, where appropriate, their children - named in his will had been adequately provided for, his residuary estate was to be applied for charitable purposes. This is to be seen, not only in the terms of cl 10, itself, but, as well, in the "charitable legacies" provided for in cl 11, in the bequest to endow what has become the Archibald Fountain, and in the various gifts over (see cll 5(c), 6(iii), 7(c), 8, 9(c)) in favour of "the Benevolent Fund of the New South Wales Branch of the Australian Journalists Association to be used for the relief of distressed Australasian Journalists". The relevance of this is that, although, as I have just noted, the testator's motives and opinions are not conclusive of the question which I must determine, it does establish that the intended bequest or bequests had two of what FitzGibbon LJ has described as the essential elements of a legal charity, that it was, or they were, "unselfish - ie for the benefit of other persons than the donor ... and ... philanthropic or benevolent - ie dictated by a desire to do good".

That being so, what is left to be determined is whether the intended bequest, or bequests, was, or were, capable of conferring upon the public, or an appreciably large class of the public, a relevant benefit.

The evidence would seem to establish that, at the time when the testator made his will, portrait painting was a well-established, and accepted, art form in this country, and that, at the time, those involved in portrait painting included such well-known figures as Sir John Longstaff and George Lambert.

The evidence would also seem to establish that the testator numbered among his interests, not only journalism, but literature and art - indeed, it has been suggested that "(one) of the governing factors in deciding the direction of the bequest (in cl 10) was ... the portrait of Henry Lawson commissioned by (the testator) from Longstaff in 1900 for fifty guineas".

It is therefore not difficult to conclude that the object of the testator in providing the bequest or bequests contained in cl 10 of his will was, if not, as "The Bulletin", in 1927, seemed to suggest, to build up "... a pictorial Pantheon of men and women ... a Hall of Heroes and Heroines whom Australia might, in years to come, delight to contemplate and be proud of honouring", then, at least, the continuing production, and exhibiting to the public, of portraits of high quality, painted by artists resident in Australia.

That it was the continuing production of such portraits which was intended is indicated by the provision that entries be painted during the twelve months preceding each annual competition; that it was intended to encourage portraiture of a high standard is suggested by both the character of the judges appointed, and the provision that the prize might be withheld if, in any year, no competing entry be worthy of the award; and that the exhibiting of the portraits was intended is indicated both by the right of the trustees to exhibit the winning portrait in each year, and the power to apply the amount of any unawarded prize in, or towards, the purchase for permanent exhibition of any winning portrait.

If this be the correct view to be taken of the testator's intention, then, so it seems to me, as did Jacobs J, as he then was ([1965] NSWR 1624) and the Court of Appeal (Wallace P, Asprey and Holmes JJA) ([1967] 2 NSWR 140) in respect of the bequest to provide prizes for a musical competition considered by him, and them, in Re Lowin (deceased); Perpetual Trustee Co Ltd v Robins, I should hold that the bequest, or bequests, to establish endow and maintain "The Archibald Prize" was, or were, charitable as being a bequest, or bequests, for the advancement of education.

If this be so, then it matters not that the popularity of portrait painting, as such, may have declined over the years, or that, in the view of some, the quality of any particular winning portrait may have been "dreary and uninspired" or "negative, indeed quite insipid", or that those who may have attended any particular exhibition were motivated to do so, not by any desire to improve their appreciation of portrait painting, but by some current controversy as to the winning portrait - although I would suggest that even those who came but to stand and stare must learn something, it would matter not if it were not so, for the question is not, has the intended purpose been achieved, but, what was the intended purpose.

I would add that, even if the question were to be decided, not in the context as it was at the date of the testator's death, but in the context of the present day, I would still regard the bequest as charitable as being for the advancement of education; for whatever may be one's personal views on the subject of portraiture, there is much to be said for the view that a competition which helps to preserve, or encourage the revival of, an old established art form, and encourages it, as it appears to have done, to move in new directions, is educative of both those who enter, and those who come to view pictures which are later exhibited.

Although this is sufficient to dispose of the question with which I am concerned to deal, I would add that it is my view that, even if it did not meet the test of "the advancement of education", a bequest to establish, endow and maintain any competition which encourages participation, on the scale revealed by the evidence in this case, and public interest, on the scale revealed by the evidence in this case, in one of the fine arts, ought, in this day and age, to be regarded as being of general public utility.

This conclusion having been reached, it only remains to me to determine whether, by making such representative orders as may be legitimate and appropriate, I might finally dispose of the proceedings.

Although the evidence discloses no reason for the non-joinder of the Art Gallery of New South Wales Trust or of some person - John Feltham Archibald, the nephew of Gladys Archibald, would have been a logical choice - to represent the next of kin of the testator, I think that, in the special circumstances - the imminent expiry of the period defined in cl 10, the delay which might be involved if it were necessary to reconstitute the proceedings, and the fact that extensive arguments for and against the validity of the bequest have been put by those counsel who have appeared - I might legitimately regard it as expedient (Supreme Court Rules 1970, Pt 8, r 14(2)(c)) to make whatever representative orders may be appropriate. This being so, I propose to order that Her Majesty's Attorney-General be appointed to represent the Art Gallery of New South Wales Trust, and that Mr McEwen's clients be appointed to represent the testator's next of kin.

For these reasons I make the following formal declarations and orders:

1.

ORDER that the amended summons filed herein be and be deemed to have been amended by deleting, as the given name of the defendant Cantlon, the word "Gain" and by inserting in lieu thereof the words "Gavin Robert";

2.

ORDER that Denny Yvonne Groth, David Fullagar, Gavin Robert Cantlon and Harold Corbett be and be deemed to have been appointed to represent for the purpose of these proceedings the class of persons comprising the next of kin of John Feltham Archibald (generally known as Jules Francois Archibald) late of Sydney in the State of New South Wales, Journalist, deceased;

3.

ORDER that Her Majesty's Attorney-General in and for the State of New South Wales be and be deemed to have been appointed to represent for the purposes of these proceedings the Art Gallery of New South Wales Trust;

4.

DECLARE, that upon the true construction of the will of the said John Feltham Archibald deceased, the bequest, provided for in cl 10 of the said will, to pay to the trustees of the New South Wales Art Gallery, for the purposes in the said clause provided, the income of five shares in the residuary estate of the said deceased, was a valid charitable bequest;

5.

DECLARE that upon the true construction of the will of the said John Feltham Archibald now deceased, and in the events which have happened, the plaintiff, as trustee for the time being of the estate of the said deceased, is obliged forthwith to transfer to the Art Gallery of New South Wales Trust the assets now in its hands representing the said five shares in the residuary estate of the said deceased and any income accrued thereon;

6.

DECLARE that the Art Gallery of New South Wales Trust shall hold the said assets and the income thereof when received by it upon the trusts and for the purposes provided for in cl 10 of the will of the said John Feltham Archibald deceased;

7.

ORDER that the costs of the plaintiff on a trustee basis and the costs of the several defendants on a common fund basis be paid or retained, as the case may be, out of the assets representing the said five shares in the residuary estate of the said deceased;

8.

ORDER that, unless, within twenty-eight days, an appeal is lodged, exhibits may be returned; in the event of an appeal being lodged, exhibits to be retained until the disposition of the appeal;

9.

LIBERTY to apply.

Orders accordingly.

Solicitors for the plaintiff: Stephen Jaques Stone James.

Solicitors for the first defendant: Turner Freeman.

Solicitor for the second defendant: H K Roberts (State Crown Solicitor).

N J Haxton, Barrister.