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The Congregation of the Religious Sisters of Charity of Australia v Attorney-General[2011] QSC 100

The Congregation of the Religious Sisters of Charity of Australia v Attorney-General[2011] QSC 100

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

The Congregation of the Religious Sisters of Charity of Australia & Ors v The Attorney-General in and for the State of Qld [2011] QSC 100

PARTIES:

THE CONGREGATION OF THE RELIGIOUS SISTERS OF CHARITY OF AUSTRALIA
ABN 99 269 630 262
(first applicant)
ST VINCENT’S HEALTH AUSTRALIA LIMITED
ABN 75 073 503 563
(second applicant)
ST VINCENT’S HEALTHCARE LIMITED
ABN 46 095 382 791
v
THE ATTORNEY-GENERAL IN AND FOR THE STATE OF QUEENSLAND

FILE NO/S:

13225/10

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 May 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

21 April 2011

JUDGE:

Martin J

ORDER:

I make the following declarations:

  1. The original purpose of the charitable trust created by the declaration of trust dated 23 February 1952 between Mary Josephine Bedford and the  Congregation of the Religious Sisters of Charity of Australia (Bedford Trust) has ceased to provide a suitable and effective method of using the property the subject of the Bedford Trust, being that part of the land contained in Lot 3 in RP 146773 that originally comprised Eastern Suburban Allotment 34, being the whole of the land described in certificate of title no. 206865 Vol 1221, Folio 105 (trust property).
  1. That St Vincent’s Healthcare Limited is the trustee of the Bedford Trust (the Trustee).

I make the following orders:

  1. That the trust property be applied and dealt with in accordance with the Scheme set out in Schedule A to these orders.
  1. Pursuant to section 106 of the Trusts Act 1973 (Qld) (the Act) that the original purpose of the Bedford Trust be altered to allow the trust property to be applied cy pres pursuant to the terms of the Scheme stated in Schedule A to these orders.
  1. Pursuant to s 76 of the Act the Congregation of the Religious Sisters of Charity of Australia (the Former Trustee) are relieved of any liability arising out of the amalgamation of the original title of the trust property with other adjoining land beneficially owned by the Former Trustee to create a larger title, being Lot 3 in RP 146773, such that the trust property is now that part of Lot 3 in RP 146773 which originally comprised Eastern Suburban Allotment 34, being the whole of the land described in certificate of title 206865 Vol 1221, Folio 105.
  1. Pursuant to s 76 of the Act the Former Trustee is relieved of any liability that might arise from the transfer of part of the trust property to the Commonwealth of Australia, being subdivision 1 of Eastern Suburban Allotment 34, which occurred on 13 March 1962 in exchange for the transfer to the Former Trustee from the Commonwealth of Australia of the land described as Re-subdivision 1 of Subdivision 1 shown on plan catalogue number 98491, which occurred on 3 April 1962.
  1. Pursuant to s 76 of the Act the Former Trustee is relieved of any liability that might arise from the transfer of the trust property to St Vincent’s Healthcare Limited.
  1. Pursuant to s 76 of the Act the Former Trustee is relieved of any liability that might arise from the transfer of part of the trust property to Brisbane City Council, being part of lot 2 on registered plan 151482, which occurred on 12 April 1976 in compliance with the conditions of an approval imposed by Brisbane City Council in respect of registered plan 151482.

CATCHWORDS:

CHARITIES – CHARITABLE GIFTS AND TRUSTS – WHERE APPLIED CY PRES – IMPRACTICALITY OF OBJECT – WHERE GIFT APPLIED CY PRES – where the first applicant received a gift of land upon trust for the purpose of building a hospice for the “sick and dying who are poor” to be called Mt Olivet Hospice – where it is financially impossible to comply with the terms of the trust – whether the trust ought to be applied cy pres – which cy pres scheme ought to be approved

EQUITY – TRUST AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – APPOINTMENT OF NEW TRUSTEES – BY THE COURT – GENERALLY – where the first applicant received a gift of land upon trust for the purpose of building a hospice for the “sick and dying who are poor” to be called Mt Olivet Hospice – where there has been a diminution in the number of religious sisters constituting the Congregation – where the Congregation was replaced by the third applicant as trustee – whether the third applicant should be declared the trustee of the Bedford Trust

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – LIABILITY FOR BREACH OF TRUST – RELIEF FROM LIABILITY – GENERALLY – where first applicant was replaced by third applicant as trustee – where by agreement the first applicant transferred the trust property to the third applicant – whether first applicant should be absolved of liability for transfer of trust estate to new trustee

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – LIABILITY FOR BREACH OF TRUST – RELIEF FROM LIABILITY – GENERALLY – where the trustee agreed with the Commonwealth to swap part of the original parcel of land with a different parcel owned by the Commonwealth which adjoined the trust land – where the original Bedford Trust land has been amalgamated into a larger parcel of land – where part of the trust property was transferred to the Brisbane City Council – whether applicant should be liable for changes to the property the subject of the trust

Trusts Act 1973, s 76, s 105, s 106

Aid/Watch Inc v Commissioner of Taxation (2010) 272 ALR 417

Ede v Ede [2006] 2 Qd R 323

Re Anzac Cottages Trust [2000] QSC 175

The Cram Foundation v Corbett-Jones [2006] NSWSC 495

Versani v Jesani [1999] Ch 219

COUNSEL:

L F Kelly SC and D B O'Sullivan for the applicants

M R Green for the respondents

SOLICITORS:

Cooper Grace Ward for the applicants

GR Cooper, Crown Solicitor, for the respondents

  1. “The past is a foreign country: they do things differently there.”[1]
  1. In February 1952 Mary Josephine Bedford made a gift of land to the Congregation of the Religious Sisters of Charity of Australia upon trust for the building of a hospice for the “sick and dying who are poor” to be called Mount Olivet Hospice[2] (“the Bedford Trust”).  In that month, the British Commonwealth was mourning the death of King George VI, Robert Menzies was the Prime Minister of Australia and Vincent Gair was the Premier of Queensland.  Only six years before that the Commonwealth had been given power through a referendum to legislate for the provision of pharmaceutical, sickness and hospital benefits, as well as medical and dental services. The National Health Service Act was passed in 1948 and while it provided that some medical services would be available free, the control of hospitals and, for that matter, hospices, remained almost entirely in the hands of the States. The emphasis was on citizens insuring themselves against health costs with the States providing free, public hospitals. The original Medibank scheme was more than 20 years away. The provision of palliative care and the arrangements for it in 1952 were of a different order of magnitude to that which exists today. Miss Bedford was living in a “different” Australia then, and could not have foreseen the changes which have occurred over the last six decades to the provision and regulation of care for the “sick and dying”.   It is that understandable inability which has led to this application for an order, among other things, that the original purpose of the Bedford Trust be altered to allow the trust property to be applied cy pres to the terms of a proposed scheme.

Relief sought

  1. The applicants seek:
  1. Declarations concerning the purpose and structure of the Bedford Trust;
  1. Orders under s 106 of the Trusts Act 1973; and
  1. Orders relieving the applicants from liability for breaches of the Bedford Trust.

The applicants

  1. The first applicant, the Congregation of the Religious Sisters of Charity of Australia (“the Congregation”) is a body corporate formed by letters patent issued in 1936 under the Religious, Educational, and Charitable Institutions Act 1861. The Congregation is a group of Roman Catholic women who serve the community in various apostolic ministries in eastern Australia. The Congregation is committed particularly to service of the poor and disadvantaged. Until last year the Congregation was the trustee of the Bedford Trust.
  1. The Congregation has for some time been experiencing a decline in membership and that led to circumstances which caused the Congregation to be replaced by the third applicant as trustee. That change took place with effect from 1 July 2009. By an agreement bearing that date the Congregation transferred the trust property to the third applicant but delays which are not relevant to this application have meant that title has not yet passed to the third applicant.
  1. St Vincent’s Health Care Limited (“the trustee”) is a company limited by guarantee and is controlled by Mary Aikenhead Ministries.
  1. St Vincent’s Health Australia Limited (“the holding company”) is a company limited by guarantee and is the holding company for the trustee.
  1. There is another company involved in the conduct of the hospital and facilities. It is St Vincent’s Health & Aged Care Limited.  It is a subsidiary of the holding company. It is also a company limited by guarantee and has the same board of directors as the holding company.  Each of the trustee, the holding company and the operating company are under the control of Mary Aikenhead Ministries. Mary Aikenhead Ministries is a “public juridic person”[3] under Canon Law that was created by a decree of the Holy See on 25 April 2008. It was created to succeed to the ministries of the Congregation, and is bound by its statutes to continue to build on the traditions of the Congregation. It forms part of the Roman Catholic Church.
  1. The Attorney-General is joined, of course, in the traditional role fulfilled by the Attorney-General of protector of charities and is the person obliged to ensure that trusts for public purposes are properly discharged, including by the application of trust property cy pres.

History of the trust

  1. In 1951 the Congregation desired to build a hospice. It had already been responsible for the building of other hospitals in Australia.
  1. At about that time Mary Bedford was the registered proprietor of a house in Main Street, Kangaroo Point known as “old St Mary’s”.  The house had been purchased by her and her long-term companion, Dr Lillian Cooper, in 1926.  The house was on a parcel of land approximately one acre and 17 perches in area[4] next to the cliffs at Kangaroo Point, overlooking the river.  Part of the land extended to the cliffs and also to land at the base of the cliffs, next to the river.
  1. The house and land was transferred to the Congregation in February 1952. The land was settled on trust for the Congregation on terms which included:

“(a)that the said congregation shall establish and maintain in perpetuity on the said land a Hospice for the sick and the dying who are also poor to commemorate the life and work of Dr Lillian Cooper and to be known as the Mount Olivetti Hospice …

(b)that the said land shall never be sold or exchanged by the said congregation …”

  1. No funds were transferred when the trust was settled, and the Congregation became responsible for meeting the costs of both building and operating the hospice on the land which had been donated by Miss Bedford.
  1. It became apparent to the Congregation once planning was undertaken for the proposed hospice that the site caused difficulties in both its size and the access to it. Now these difficulties have been resolved in a number of ways since 1952. The first solution was the closure and purchase of an adjoining street. I will refer to other actions taken later in these reasons. The hospice was opened in 1957, together with a convent and a chapel. Since that time the original hospice has been substantially refurbished and additional levels and other buildings have been added to it. Thus, the original hospice building is located on three identifiably different areas of land: the land donated by Miss Bedford, the land obtained through the closure of the street, and further land acquired subsequent to 1952.
  1. The land which has been acquired since 1952 has allowed the Congregation to construct additional facilities on the site. Today these comprise the Marycrest Retirement Centre, for low care residential aged care, and the Lillian Cooper Nursing Home for high care residential aged care. Both of these are operated under the name “Caritas Care”. A detailed history of the changes in the operation of the hospice and associated undertakings is contained in the supporting affidavits which were read on this application. It is not necessary, though, for them to be set out in similar detail in these reasons. It is sufficient to note that the manner in which palliative care is provided to those who need it at Mount Olivet has changed dramatically since the trust was established and the hospice was built.  I am satisfied that if the terms of the trust were to be strictly enforced, then the in-patient palliative care services which have resulted in a financial loss for some years would continue to incur a loss into the future.  The material establishes that the palliative care is, in effect, subsidised by the other medical services provided at the hospital.
  1. The evidence establishes that the terms of the trust are not presently being fulfilled in two substantial respects. First, the Mount Olivet Hospital now does not only provide palliative care but more general care.  Secondly, admission is not restricted to those who are “poor”.  Further, the name “Mount Olivet” is no longer given to the entire hospital (it was renamed “St Vincent’s Hospital Brisbane” in 2009).  The name “Mount Olivet” is given to the specialist palliative care unit within that hospital. 

Charitable trust

  1. The trust which was created with the gift of land to the Congregation required that that land be dealt with in four relevant ways. It was to be applied to:
  1. Establish and maintain in perpetuity on the said land;
  1. A Hospice for the sick and the dying who were also poor,
  1. To commemorate the life and work of Dr Lillian Cooper; and
  1. It was to be known as the “Mt Olivetti Hospice”.
  1. It was, at the time of its creation, clearly a charitable trust because it was for the “relief of poverty” or, at the very least, was “for other purposes beneficial to the community”.[5]

The Trusts Act

  1. Section 105 of the Trusts Act provides:

“105Occasions for applying property cy pres

(1)Subject to subsection (2), the circumstances in which the original purposes of a charitable trust can be altered to allow the property given or part of it to be applied cy pres shall be as follows—

(a)where the original purposes, in whole or in part—

(i)have been as far as may be fulfilled; or

(ii)can not be carried out; or

(iii)can not be carried out according to the directions given and to the spirit of the trust;

(b)where the original purposes provide a use for part only of the property available by virtue of the trust;

(c)where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the trust, be made applicable to common purposes;

(d)where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the spirit of the trust, or to be practical in administering the trust;

(e)where the original purposes, in whole or in part, have, since they were laid down—

(i)been adequately provided for by other means; or

(ii)ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or

(iii)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

(2)Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy pres, except in so far as those conditions require a failure of the original purposes.

(3)References in subsections (1) and (2) to the original purposes of a trust shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.

(4)It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy pres, to secure its effective use for charity by taking steps to enable it to be so applied.

(5)Nothing in this section shall affect the application of the provisions of the Charitable Funds Act 1958 to the funds to which that Act applies.”

  1. Section 106 of the Trusts Act provides:

“106Proceedings in case of charitable trust

(1)The court may upon application under this section by an order in respect of any charitable trust—

(a)give directions in respect of the administration of the trust; and

(b)require any trustee to carry out the trust, or to comply with a scheme (if any); and

(c)require any trustee to satisfy the trustee’s liability for any breach of the trust.

(2)An application under this section may be made—

(a)by the Attorney-General or person authorised by the Attorney-General; and

(b)by the charity, or any trustee of the trust; and

(c)by any person interested in the due administration of the trust.

(3)Notice of the application shall be given to the Attorney-General, and to the trustee of the trust and to such other person as the court directs.

(4)On any such application the court may make such order as to costs and otherwise as may be just.

(5)In this section—

charitable trust means any property held in trust for a charitable purpose.

charity means any institution, whether or not incorporated, which is established for charitable purposes.”

  1. Section 76 of the Trusts Act provides:

“76Power of court to relieve trustee from personal liability

If it appears to the court that a trustee, whether appointed by the court or otherwise, is, or may be, personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which the trustee committed the breach, then the court may relieve the trustee either wholly or partly from personal liability for that breach.”

Application of trust cy pres

  1. Section 105 of the Trusts Act liberalises the law which previously applied to charitable trusts.  Under that section it is no longer necessary to establish that actual compliance with the original terms of the trust is impossible, rather it is now sufficient that an applicant demonstrate that the original terms have ceased to provide a suitable and effective method of using the trust property.[6]
  1. The applicants submit that the elements of s 105 which now are of particular relevance to the issues raised on this application are:
  1. Section 105(1)(d) – “original purposes were laid down by reference to … a class of persons … which has for any reason since ceased to be suitable, regard being had to the spirit of the trust, or to be practical in administering that trust”;
  1. Section 105(1)(e)(iii) – “original purposes … have … ceased to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust …”.
  1. In both those subsections reference is made to the “spirit of the trust”. That term refers to the basic intention underlying the gift so far as it can be ascertained from the terms of the relevant instrument in the light of admissible evidence.[7]

“A class of persons”

  1. The terms of the trust referred to the provision of the hospice “for the sick and the dying who are also poor”.
  1. While that requirement would have been able to be complied with in 1952, it is a financial impossibility now. The applicants have identified three problems which arise on that point. They are:
  1. Mount Olivet, being a public hospital, is bound by the Medicare Agreement to provide care to all Australian citizens and eligible overseas patients regardless of their means.  It follows, then, that the hospital cannot be operated only for “the poor”.
  1. The cost of providing palliative care now is substantially greater comparatively to the cost of providing care when the hospice was established.  If the hospital was restricted to being just a “hospice” it would not be viable and would have to cease functioning.
  1. There is no unsatisfied demand for inpatient palliative care at the Mount Olivet Hospice.  There are over 140 beds which are not needed for palliative care and so there is no clinical need for the whole hospital to function as a hospice.
  1. Each of those contentions was supported by evidence relating to the terms of the Australian Health Agreement between the Commonwealth and the States (“the Medicare Agreement”), the financial records relating to the cost of conducting the hospice, and the experience of the hospital that there has been a significant lessening of demand for dedicated inpatient palliative care. That lessening of demand is consistent with the trend toward improving and increasing community services for people to be cared for at home.
  1. I am satisfied that the circumstances of this trust fall within both s 105(1)(d) and s 105(1)(e)(iii) of the Trusts Act.
  1. My attention was drawn by the applicants to s 105(2) of the Trusts Act which works to ensure that the general law limits on applying properties cy pres are retained subject to the requirements concerning the failure or constriction of the purpose.  In this case, I am satisfied that Miss Bedford in conveying the property subject to the trust did evince a general charitable intention and that in doing so an absolute gift was made.  The gift was not subject to some condition, such as the occurrence of an event, which would cause the property to vest in another.

The proposed scheme

  1. A proposed cy pres scheme must be able to be shown to deal with the identified problem, create a means of continuing the intention of the gift and conform to “the spirit of the trust”.
  1. In The Cram Foundation v Corbett-Jones[8] Brereton J said (when considering the cognate provision in New South Wales legislation) that, “when directing a cy pres scheme, the court acts in accordance with the spirit of the trust, to apply the property to the charitable purpose in a presently effective and practical way”.[9]
  1. The scheme proposed by the applicants is one which will allow for a continued operation of the trust and for the “spirit of the trust” to be maintained in that operation. It is an effective and a practical way of applying the trust estate in the circumstances which now obtain.
  1. I am satisfied that by altering the original purpose of the Bedford Trust to allow the trust property to be applied cy pres pursuant to the terms of the scheme stated in the schedule to these reasons, that the “spirit of the trust” will be preserved:
  1. The hospital currently provides and will continue to provide a tertiary inpatient unit, as well as a range of other palliative care services;
  1. The Congregation operates the hospital as part of its mission to serve the poor, even though the Congregation relies on a wider definition of poor than just material possessions;
  1. The trustee acknowledges that “provision of services on and adjoining the trust property will be delivered with continuing concern for service to the poor”;
  1. Although the name of the hospital has been changed, the palliative care ward retains the name “Mount Olivet Hospice” and the scheme provides that that name will continue to be used in conjunction with the provision of palliative care services to the dying from facilities on and adjoining the trust property; and
  1. Clause 3(e) of the proposed scheme provides that there will continue to be a commemoration of the life and work of Dr Lillian Cooper.
  1. I intend, therefore, to make orders in terms which will allow Schedule A to the orders to take effect.

Other orders sought

  1. As there has been a diminution in the number of religious sisters constituting the Congregation, the Roman Catholic Church has created the Mary Aikenhead Ministries, one purpose of which is to ensure that the mission which had hitherto been carried on by the Congregation will continue to be carried out. Consistent with that change in circumstance, an order is sought declaring that the third applicant is the trustee of the Bedford Trust. I will make that declaration and the third applicant will be bound by the proposed scheme.
  1. A further order is sought absolving the Congregation from any liability for the effective transfer of the trust estate to the new trustee. The reasons for this have been set out above and this is an appropriate order to make.
  1. There are three instances in which there have been changes to the property the original subject of the trust, which changes have not been authorised. They are:
  1. In 1962 the Congregation agreed with the Commonwealth of Australia to swap part of the original parcel of land with a different parcel owned by the Commonwealth but which adjoined the trust land.  The part which was swapped was located at the bottom of the Kangaroo Point cliffs and could not have been used for the erection or the operation of the hospice or for any matter associated with the hospice.  This was clearly beneficial to both the hospice and the hospital but the swap should have been approved by this Court.
  1. The original Bedford Trust land has been amalgamated into a larger parcel of land.  That new parcel was created in 1976 and is used for the purposes of the Congregation’s mission at Kangaroo Point.  The new parcel includes the original Bedford Trust land.  The amalgamation of the original trust land into the greater parcel was, in effect, necessary because the original trust land was not sufficient to accommodate the building of the Mount Olivet Hospice.  The hospice is built on land which included the original trust land and other parcels of land which have been amalgamated into the new lot.  The amalgamation did not result in the sale, transfer or other alienation of the trust land and was entirely for the benefit of the hospice.
  1. Part of the trust property was transferred to the Brisbane City Council in 1976.  It was transferred in compliance with the conditions of an approval imposed by the Council in respect of a registered plan.  Nothing was put before the Court as to what those conditions of approval were but an inference may be drawn that the approval related to the expansion of the facilities to include residential aged care.  It may be that the land was transferred in breach of trust in that it was transferred for the purposes of the Congregation and not for the purposes of the Bedford Trust.  I think it more likely, though, that the construction of aged care facilities next to the trust land should be considered as being incidental to the purpose of the Bedford Trust.  It was the revenue from those facilities which allowed the hospice to continue to function, running at a loss.  The surplus which was generated through the aged care facility was, in part, directed towards defraying those operating losses. If that inference is not properly able to be drawn, then the Congregation seeks an order relieving it of any liability arising from the transfer of that part of the trust estate to the Council.
  1. It has frequently been recognised that the power under s 76 is a power which affords the court a wide discretion. An applicant must demonstrate that he or she has:
  1. acted honestly,
  1. acted reasonably, and
  1. ought fairly to be excused for the breach.
  1. Section 105 of the Powers of Attorney Act 1998 is similar in construction and effect to that of s 76 of the Trusts Act.  In Ede v Ede,[10] Muir J (as he then was) made some observations with respect to the operation of that section which, in my opinion, can be applied equally to the operation of s 76.  They are:
  1. The court has a wide discretion and must look to the whole of the circumstances in which the breach took place;
  1. Where a trustee has tried to act honestly, the court should not impose too harsh a burden;
  1. The fact that an attorney (or a trustee in this case) is not acting for reward is a highly relevant consideration;
  1. It is relevant to know whether the attorney/trustee took and followed legal advice; and
  1. Section 106 is a remedial provision and should not be narrowly construed.
  1. With respect to each of the technical breaches of trust referred to above, the evidence establishes:
  1. that the Congregation has at all times acted honestly;
  1. the trustee was not acting for reward;
  1. that the making of the land swaps, the amalgamation of the title, and the making of the transfer of land to the Council, were all reasonable actions to take; and
  1. that these breaches ought fairly to be excused.

 

Position of the Attorney-General

  1. Before this application was filed the applicants, through their legal advisers, consulted the Attorney-General and engaged in useful negotiation with respect to the terms of any proposed order.
  1. The Attorney-General has considered the application and does not oppose the application brought by the applicants, nor does he seek costs.

ORDERS

  1. I make the following declarations:
  1. The original purpose of the charitable trust created by the declaration of trust dated 23 February 1952 between Mary Josephine Bedford and the  Congregation of the Religious Sisters of Charity of Australia (Bedford Trust) has ceased to provide a suitable and effective method of using the property the subject of the Bedford Trust, being that part of the land contained in Lot 3 in RP 146773 that originally comprised Eastern Suburban Allotment 34, being the whole of the land described in certificate of title no. 206865 Vol 1221, Folio 105 (trust property).
  1. That St Vincent’s Healthcare Limited is the trustee of the Bedford Trust (the Trustee).
  1. I make the following orders:
  1. That the trust property be applied and dealt with in accordance with the Scheme set out in Schedule A to these orders.
  1. Pursuant to section 106 of the Trusts Act 1973 (Qld) (the Act) that the original purpose of the Bedford Trust be altered to allow the trust property to be applied cy pres pursuant to the terms of the Scheme stated in Schedule A to these orders.
  1. Pursuant to s 76 of the Act the Congregation of the Religious Sisters of Charity of Australia (the Former Trustee) are relieved of any liability arising out of the amalgamation of the original title of the trust property with other adjoining land beneficially owned by the Former Trustee to create a larger title, being Lot 3 in RP 146773, such that the trust property is now that part of Lot 3 in RP 146773 which originally comprised Eastern Suburban Allotment 34, being the whole of the land described in certificate of title 206865 Vol 1221, Folio 105.
  1. Pursuant to s 76 of the Act the Former Trustee is relieved of any liability that might arise from the transfer of part of the trust property to the Commonwealth of Australia, being subdivision 1 of Eastern Suburban Allotment 34, which occurred on 13 March 1962 in exchange for the transfer to the Former Trustee from the Commonwealth of Australia of the land described as Re-subdivision 1 of Subdivision 1 shown on plan catalogue number 98491, which occurred on 3 April 1962.
  1. Pursuant to s 76 of the Act the Former Trustee is relieved of any liability that might arise from the transfer of the trust property to St Vincent’s Healthcare Limited.
  1. Pursuant to s 76 of the Act the Former Trustee is relieved of any liability that might arise from the transfer of part of the trust property to Brisbane City Council, being part of lot 2 on registered plan 151482, which occurred on 12 April 1976 in compliance with the conditions of an approval imposed by Brisbane City Council in respect of registered plan 151482.

 

Schedule A

Scheme for administration of the Bedford Trust

 

The Bedford Trust

  1. The Bedford Trust was created by a Declaration of Trust dated 23 February 1952 between Mary Josephine Bedford and the Congregation of the Religious Sisters of Charity of Australia, which was the former trustee of the Bedford Trust.

 

Definitions

 

  1. Congregation means The Congregation of the Religious Sisters of Charity of Australia, a congregation of religious women within the Roman Catholic Church.  The Congregation holds letters patent dated 10 June 1936 constituting it as a body corporate pursuant to the Religious Educational and Charitable Institutions Act of 1861 (Qld).
  2. Trust Deed means the Declaration of Trust dated 23 February 1952 between Mary Josephine Bedford and the Congregation.
  3. Trustee means the trustee of the Bedford Trust.  The Trustee is St Vincent’s Healthcare Limited.
  4. Original Land means the land transferred by Mary Josephine Bedford on or about the date of the Trust Deed, being that part of the land contained in Lot 3 in RP 146773 that originally comprised allotment 34, being the whole of the land described in certificate of title no. 206865 Vol 1221, Folio 105.
  5. Trust purposes means the purposes of the Bedford Trust set out in clause 2.
  6. Trust property means the Original Land.

 

Trust purposes

 

  1. The purposes of the Bedford Trust are to use the Trust property for the purposes of providing care for the sick or the dying.

 

  1. In fulfilling these purposes the Trustee:

 

  1. Is entitled to conduct a health service on the Trust Property, including but not limited to providing hospital services, medical care, and providing services by means of inpatient and outpatient services or such other services as from time to time may be appropriate to carry out the purposes of the Trust;
  1. Must ensure that palliative care services continue to be made available from at least one unit in the facilities on and adjoining the Trust Property.  Beds in that unit need only be made available to patients with a demonstrable clinical need for palliative care as inpatients rather than in their own homes or other places or residence.  The number of beds in that unit available for palliative care may be reduced for any period during which the government funding for palliative care and any profits generated in the use of the Trust Property other than for palliative care are insufficient to make providing all of the beds for the palliative care viable.  The number of beds may not be reduced by more than the number of beds for which it is unviable to provide palliative care;
  1. Must ensure that the name ‘Mt Olivet’ continues to be used in conjunction with the provision of palliative care services to the dying from facilities on and adjoining the Trust Property;
  2. Acknowledges that service of the poor is an essential element of the mission of the Congregation, the Trustee and all facilities under the control of Mary Aikenhead Ministries and that accordingly provision of services on and adjoining the Trust Property will be delivered with continuing concern for service of the poor;
  3. Must ensure that the Trustee, and any entity providing the health services from facilities on and adjoining the Trust Property, will continue to commemorate the life and work of Dr. Lillian Cooper; and
  4. Will permit members of the Congregation to continue to reside in the convent that is located partly on the Trust Property, without paying any rent to the Trustee.

The Trustee

  1. The Trustee may at any time resign and appoint as a new Trustee another entity that has legal personality under civil law and which is a part of a public juridic person within the canon law of the Roman Catholic Church.

 

 

Footnotes

[1] “The Go-Between”, LP Hartley, New York Review Books Classics, p 1.

[2] The original documents referred to “Mt Olivetti Hospice”.  That was an obvious error and, given the biblical references to Mount Olivet and the religious faith of Miss Bedford, the name “Mt Olivet” has always been used.  Perhaps the original typist was using an Olivetti typewriter.

[3] A public juridic person is a legal entity under canon law that allows the Church’s ministries to function in the name of the Catholic Church.

[4] Approximately 4.4 hectares.

[5] Aid/Watch Inc v Commissioner of Taxation (2010) 272 ALR 417, [18].

[6] Re Anzac Cottages Trust [2000] QSC 175.

[7] The Cram Foundation v Corbett-Jones [2006] NSWSC 495; Re Anzac Cottages Trust [2000] QSC 175 and Versani v Jesani [1999] Ch 219 at 230.

[8] 2006 [NSWSC] 495.

[9] At [45].

[10] [2006] 2 Qd R 323.

Close

Editorial Notes

  • Published Case Name:

    The Congregation of the Religious Sisters of Charity of Australia & Ors v The Attorney-General in and for the State of Qld

  • Shortened Case Name:

    The Congregation of the Religious Sisters of Charity of Australia v Attorney-General

  • MNC:

    [2011] QSC 100

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    05 May 2011

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aid/Watch Inc v Commissioner of Taxation (2010) 272 ALR 417
2 citations
Jump To
Cite 1 - (2010) 272 ALR 417
Cite 2 - (2010) 272 ALR 417
Ede v Ede [2006] 2 Qd R 323
2 citations
Jump To
Cite 1 - [2006] 2 Qd R 323
Cite 2 - [2006] 2 Qd R 323
Re Anzac Cottages Trust [2000] QSC 175
3 citations
Jump To
Cite 1 - [2000] QSC 175
Cite 2 - [2000] QSC 175
Cite 3 - [2000] QSC 175
The Cram Foundation v Corbett-Jones [2006] NSWSC 495
3 citations
Jump To
Cite 1 - [2006] NSWSC 495
Cite 2 - [2006] NSWSC 495
Cite 3 - [2006] NSWSC 495
Versani v Jesani [1999] Ch 219
2 citations
Jump To
Cite 1 - [1999] Ch 219
Cite 2 - [1999] Ch 219

Cases Citing

Case NameFull CitationFrequency
Perpetual Trustee Co Ltd v Corporation of the Synod of the Diocese of Brisbane [2024] QSC 163 1 citation
Public Trustee of Queensland v Intellectually Handicapped Persons Association of Queensland [2014] QSC 1782 citations
The Corporation of the Trustees of the Roman Catholic Queensland Regional Seminary v Attorney-General for the State of Queensland [2020] QSC 674 citations
Themis Holdings Pty Ltd v Canehire Pty Ltd [2014] QSC 383 citations
1

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