Randwick Corporation v Rutledge

102 CLR 54
[1959] HCA 63
[1960] ALR 66
33 ALJR 367
5 LGRA 127

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(Judgment by: Menzies J)

Randwick Corporation v Rutledge

Court:

Judges: Dixon CJ
Fullagar J
Kitto J

Menzies JWindeyer J

Subject References:
Local government
Rates
Exemptions
Meaning of 'dedicated'
Meaning of 'public reserve'
Meaning of 'public purpose'

Other References:
Local Government Act 1919 (NSW), ss 4, 132

Hearing date: 18 August 1959; 19 August 1959; 20 August 1959; 30 November 1959;
Judgment date: 30 November 1959

SYDNEY

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Judgment by:
Menzies J

List of Judges

MENZIES J. The Local Government Act 1919 (N.S.W.), s. 132 (1) (c), excepts from ratability land which is vested in trustees and is used for a public reserve. The Full Court (Owen and Brereton JJ., Walsh J. dissenting) has upon a case stated by Hardie J.-sitting as a Land and Valuation Court-decided that his decision that the Randwick racecourse is not land falling within this exception, was wrong in law. This appeal is from the Full Court's decision. The year in question is 1957.

In the Act, unless inconsistent with the context or subject matter, "public reserve" means a public park and "any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature" (s. 4). This definition makes decisive the fact of dedication or reservation for a purpose set out. The exception created by s. 132 (1) (c) is in respect of land used for a public reserve; the emphasis here is upon the use of the land and the language of the provision is inconsistent with the literal incorporation of the definition. To read the definition into s. 132 (1) (c) would make it read "used for any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature". This would be nonsense. The definition, like any other part of the Act, may be used to assist in interpreting the words "a public reserve" in s. 132 (1) (c), but this appears to be one of the uncommon cases where the context and subject matter of a particular section require the rejection of a statutory definition as fixing the meaning of words in that section. In Throsby v Wingecarribee S. C. ^[F1] although it was said, and rightly said, that the definition in s. 4 cannot be read literally into s. 132 (1) (c), the Court did import certain elements of the definition into the section; in that case, the requirement of dedication or reservation from sale by the Crown. I am not completely satisfied that s. 132 (1) (c) can have no application to land (not being a public park) unless it has been dedicated or reserved from sale by the Crown. Unless the definition in s. 4 is carried into s. 132 (1) (c), I see no reason why this element should be regarded as essential in a provision which is dealing with nothing more than the use of land vested in the Crown or in a public authority or in trustees. This is a matter to which I shall return after dealing with what I regard as the central question in this case, namely, whether the subject land, being used for a purpose for which it was dedicated or reserved from sale, i.e. a racecourse, was in 1957 used for a public reserve. If it is, Hardie J., as the Full Court decided, was wrong in law.

Mr. Wallace, for the respondents, argued first that this question must be answered affirmatively because the terms of the Crown grant, the Australian Jockey Club Act and the Crown Lands Consolidation Act require the conclusion that racing is a public purpose and, for the purposes of s. 132 (1) (c) of the Local Government Act, land which is used for a public purpose is, ipso facto, used for a public reserve. The Crown grant, which is dated 15th June 1863, was a grant of the subject land by Her Majesty Queen Victoria to the original trustees and was expressed in its heading to be for the purposes of public recreation. This grant was, it seems, made in conformity with the Imperial Act of 1842 (5 & 6 Vict. c. 36) which provided that nothing therein should prevent Her Majesty from disposing of, as in the public interest seems best, land required for places for the recreation and amusement of the inhabitants of any town or for any other purpose of public convenience, health or enjoyment. The grant was not, however, preceded by a reservation or dedication for a public purpose in the manner provided for by the Crown Lands Alienation Act 1861. The trusts declared were in the discretion of the trustees to permit and suffer the land to be used (1) as a racecourse, (2) as a racehorse training ground, (3) as a cricket ground, (4) as rifle butts and (5) "for any other public amusement or purpose" declared by the Governor in Council. By the grant, the trustees were expressly authorized to grant the Australian Jockey Club the exclusive right to use and occupy the lands. Some of the provisions of this Crown grant are recited in the preamble to the Australian Jockey Club Act 1873, which authorized the trustees to grant leases not exceeding twenty-one years to the Australian Jockey Club or any other racing club. It is provided that any lease to the Australian Jockey Club should be in the name of the Chairman and by s. 10 the Act provided that the lands authorized to be demised to the Chairman should be held by him and his successors in office "only for the purpose of being maintained and used for a public racecourse or for one or other of the purposes in the said deed of grant mentioned". Section 24 of the Crown Lands Consolidation Act, which embodied with amendments the relevant provisions of the Crown Lands Alienation Act 1861, authorized the Minister to dedicate Crown lands for certain enumerated purposes (including a racecourse) or "for any other public purposes". The submission made was that these provisions, taken together, show that in New South Wales the use of land for a racecourse or for the training of racehorses is, by statute, use for a public purpose. I am not prepared to accede to this argument. In the first place, I do not think that either the Australian Jockey Club Act or the Crown Lands Consolidation Act do stamp the use of land for a racecourse as use for a public purpose. It would, I think, be wrong to construe the words "for any other public amusement or purpose" in the Crown grant as implying that any use falling within the preceding enumeration has the character of a public amusement or purpose. Randwick racecourse could, for instance, be used as a training establishment and nothing more, and the general public entirely excluded, but it would seem to me to be putting an impossible burden on the words "other public amusement or purpose" to treat them as requiring that the use of the land as such a training establishment should be regarded as a public amusement or purpose. All that those words presuppose is that something falling within the preceding categories (1) to (4) is a public amusement or purpose. I agree with what was said as long ago as 1898 in Borough of Randwick v Dangar ^[F2] , when in answer to the same argument as I am considering, G. B. Simpson J. said:"Mr. Walker contends that the Act of Parliament contains a declaration that horse-racing is a public purpose. I do not think it does. The Act does not say that all the purposes for which the trustees may lease the land are public purposes" ^[F3] . In the same way, there is no sufficient justification for a construction of s. 24 of the Crown Lands Consolidation Act that would require the dedication of land for a racecourse of any kind or, for that matter, a school or a cemetery of any kind, to be regarded as a dedication for a public purpose. In the enumeration made in the section, the word "public" is repeatedly used when it is intended that the use for which there is a dedication must be a public use. Nor, as will be seen, is any land used for a public purpose ipso facto used for a public reserve.

Rejecting, therefore, the argument that depends simply upon the construction of the relevant Acts of Parliament and the Crown grant, it seems to me that it is necessary to ascertain what is meant by the words "used for a public reserve" and then to determine whether the use to which the Randwick racecourse was put in 1957 must fall within that description so that Hardie J. was wrong in law. To fall within s. 132 (1) (c) land must, I think, be set apart and used for the general welfare; it must be land open to common and general use for-to use language based upon the definition in s. 4 - public health, recreation, enjoyment or the like. This does not mean that every member of the public must have an unfettered right to resort to every public reserve and to use the facilities there provided as and when he chooses free of charge. There are public reserves of a character which requires close regulation of their public use, e.g. botanical gardens or a sports arena. Nor does it mean that no members of the public should have special privileges for the use of the reserve; e.g. to admit botanists to botanical gardens at times when they are closed to the general public would be consistent with their use as a public reserve. Nor is an admission charge inconsistent with land being used as a public reserve. What is required in every case where the question is whether land is used for a public reserve is a survey of all that happens upon the land to determine whether it is in fact set apart and used for the general welfare in the sense already stated. Before making this survey, there is, however, a particular point of law to be mentioned.

The judges of the Full Court accepted the decision in Municipal Council of Mosman v Spain ^[F4] to the effect that s. 132 (1) (c) does not require that a public reserve shall be used solely or exclusively as a public reserve and that it is sufficient if it is substantially used for a public reserve. Although I think the context does not justify reading s. 132 (1) (c) as if the word "solely" were inserted after the word "used" (and I add that Blackwood's Case ^[F5] , which was decided upon a different provision, does not compel such a construction), I do not think that land would be within the exception if it were sometimes used for a public reserve and sometimes for some foreign purpose, e.g. as a public park and as a military camp. The general survey to which I have already referred is one that would take account of all uses to which the land is put, for the purpose of ascertaining whether the proper conclusion is that the land is held and used for the general welfare, as already stated. I would avoid the use either of the word "solely" or the word "substantially" in relation to s. 132 (1) (c) but would acknowledge that uses which by themselves would not seem to be obvious uses for a public reserve might, as part of a wider use, be properly regarded as part of a use for a public reserve, e.g. the establishment and management of a restaurant by private caterers or the hiring of pleasure boats in a public park, the provision of stalls for the sale of machinery at an agricultural show, the granting of privileges to members of a society in the use of zoological gardens. Indeed, I have no reason to think that the actual decision in Spain's Case ^[F6] that Taronga Park was used for a public park, was not correct.

Turning now to the use of Randwick racecourse in 1957, it appears that the Australian Jockey Club exercised its exclusive right to use and occupy the land and that, save for members, officers and employees of the club or persons having business with horses in training, every person, except on race days, was prohibited from entering the land without the consent of the committee of the club or their authorized agent (by-law 17) and that this exclusion was enforced by encircling the land with walls and fences and by the use of gatekeepers and the like; the club did maintain and use the land for a public racecourse so that on race days it was open to common use upon payment of reasonable charges, and in the course of the year attendances totalled 900,000; the customary racecourse facilities were provided for trainers, jockeys, book-makers and racegoers; members of the club, some 1,700 in number, enjoyed special facilities denied to the public generally; the course was used for the training of up to 500 horses on occasions; some non-members were permitted to use the land on occasions for parties, games or the enjoyment of the gardens; there were upon the land very substantial improvements effected by the club and for which, in the event of the cancellation of its lease, it would in some circumstances at least be entitled to compensation; and the club had accumulated profits amounting to PD800,000 arising from its use of the racecourse, which profits were available for the purposes of the club and have not been, and need not be, used upon the racecourse. Of all this, the element that is relied upon principally to give the racecourse the character of a public reserve is that the club used the land for public race meetings; this use, it is claimed, was not only the use for which the land was granted and which justified the description in the grant as one for public recreation, but was, in fact, use for the general welfare in the sense already stated, and that the other uses to which the racecourse was put should all be regarded as forming part of its use as a public racecourse. In this way it was also sought to reach the conclusion that it was used for a public reserve.

I am prepared to take the first step and to regard the use of this land for a public racecourse as a use for the purpose of public recreation, and this for two reasons. The first is the history of the course, i.e., its origin as disclosed in the Crown grant and the transactions that preceded it, including the request of members of the public in 1832 for the reservation of land for use as a racecourse, the approval of that request by the then Governor, the consequent marking upon charts of an area shown as "Reserve for Sydney Racecourse", the request in 1859 for a grant of the area so marked to trustees for a racecourse, the advice of the Executive Council that the appropriation of the land at present constituting the racecourse (which was the area marked on charts after 1832 minus and plus twenty acres) be approved, the approval of that advice by the then Governor in 1859, and the notification in 1860 that the land had been appropriated as a racecourse leading to the grant in 1863 "for the purposes of public recreation" as already stated. The other reason is the notorious popularity of racing as a pastime and the large attendance of members of the public at race meetings. Furthermore, it is beyond question that at all times material Randwick was, and was conducted as, a public racecourse, notwithstanding that it was open to racegoers only when meetings were held some twenty-seven times a year. Hardie J. decided that the land was not used for the purpose of public recreation on two grounds: (1) because it was not used or available for use by the public as of right, and (2) because taking everything into account, the land was not used for the purpose of public recreation. For the reasons I have already given, I consider that the facts that, except upon race days, the public has no access as of right to the racecourse, and that on race days those resorting there have to pay to enter, do not establish that the racecourse was not used for public recreation or enjoyment. Furthermore, the finding that the racecourse was not used for the purpose of public recreation because of the substantial restrictions upon the attendance of the public and the special position of the Australian Jockey Club and its members was, for the reasons I have given, in error.

The first two questions in the case stated are:"(1) Whether I erred in law in holding that land is used for the purpose of public recreation or public enjoyment so as to constitute a public reserve within the meaning of s. 132 (1) (c), if and only if it is used or available for use by the public as a matter of right with or without restrictions imposed by Ordinance or by the general law. (2) Whether I erred in law in holding that the existence of the lease from the trustees and the rights in the Australian Jockey Club created thereby, when taken in conjunction with the provisions of cl. XVII of the by-laws, negative the claim of the appellants that the land was being used for the purpose of public recreation within the meaning of the Local Government Act". In my judgment, both these questions should be answered affirmatively, but this does not end the matter.

Rather, it brings me to the critical problem whether, because of its use for the purpose of public recreation, the racecourse must be regarded as used for a public reserve, and I leave the intervening questions submitted by Hardie J. and pass directly to question 8, which is directed to this problem and is as follows:"(8) Whether I erred in law in holding that the subject land was used principally and primarily by the Club, its members, its officers and employees and by owners, trainers, bookmakers and others engaged in the various business activities and callings associated with horse racing and that its use by the public, in terms of time and area, did not qualify it to be classified or described as a public reserve within the meaning of the Local Government Act." It seems to me that his Honour's finding depended upon a survey of the kind already stated of all that took place at the racecourse. I agree with Walsh J. in thinking that, upon this survey, Hardie J. made a finding that was certainly open to him upon the evidence, having regard to the rights of the Australian Jockey Club and the privileges of its members; the restriction upon the public use of the land both by reason of walls and fences and the prohibition against entry; the use of the land for the training of horses; and the fact that in its total use of the land the Australian Jockey Club was carrying on business on a large scale for profit.

For this reason, I think that the Full Court was wrong in not answering question 8 and in answering question 11 affirmatively.

Upon the view I have taken, dedication or reservation from sale by the Crown for the purpose of public recreation or amusement may not be an element necessary to secure the exception provided by s. 132 (1) (c), but if this must be shown, I consider that it has been shown. To put my reasons very shortly, I would say that I consider that when in 1833 the Surveyor-General reported to the Colonial Secretary that he recommended the reservation of two hundred and two acres as a racecourse and the Governor approved of this reservation, that area was reserved from sale as a racecourse and that when in 1859 the Governor approved of the appropriation of that area (minus and plus twenty acres) as a racecourse and this was notified in the Government Gazette, there was then a dedication of that area for a racecourse, as well as a further reservation from sale. It is true that in the Crown grant an intention to dedicate is recited but, notwithstanding this, I think-if I am at liberty upon these proceedings to draw a conclusion from what appears in pars. 4 to 7 inclusive of the case stated-that there were both a reservation from sale and a dedication for the purpose of public recreation prior to the passing of the Crown Lands Alienation Act 1861. Although I agree with Mr. Bowen that the terms of that Act preclude a reservation or dedication thereafter otherwise than in compliance with its terms, it is to be observed that the Act recognizes that lands may have been previously reserved without following any procedure prescribed by statute, and by s. 6 it provides inter alia that lands hitherto permanently reserved "shall be deemed to be set apart attached and dedicated accordingly".

I have not thought it necessary to express any opinion on the question whether, if I had concluded that Hardie J. was in error in not finding that the land was used for a public reserve, the fact that it could be said that it was so used by the Australian Jockey Club rather than by the trustees in whom it was vested would, in any event, have taken it outside s. 132 (1) (c).

I consider the appeal should be allowed.