Papua New Guinea Law Reports - 1975
[1975] PNGLR 448
N19
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CATHOLIC MISSION PROPERTY TRUST
V
RABAUL TOWN COUNCIL
Rabaul & Port Moresby
Prentice DCJ
15 November 1975
19 December 1975
RATING AND VALUATION - Local government legislation - Ratable land - Exemptions - “School buildings and ancillary facilities” - Education office - “Churches and other places of religious worship” - Archbishop’s residence containing oratory - Local Government Act 1963, s. 59g (2) (a) and (b).
Section 59g (2) (a) of the Local Government Act 1963 exempts from the payment of local government rates “school buildings and ancillary facilities owned or conducted by voluntary education agencies within the meaning of the Education Act 1970”.
Held
That property owned by the Catholic Mission Property Trust and used partly for residential purposes, and partly as an education office for the schools of the Archdiocese, (though not attached to any “school buildings”) could not be exempted under s. 59g (2) (a) of the Local Government Act 1963.
It would not be within the natural use of the word “ancillary” as meaning “subservient, subordinate to” to describe a diocesan education office as “subservient or subordinate” to school buildings in general, further the statute appears to contemplate facilities being ancillary to a particular group of school buildings rather than to numerous buildings scattered widely through a province or several provinces.
Section 59g (2) (b) of the Local Government Act 1963 exempts from the payment of local government rates “churches and other places of religious worship”.
Held
That the residence of the Catholic Archbishop, inasmuch as it contained an oratory in which the Archbishop celebrated Mass and prayers for himself and his staff of two nuns, was not such a substantial user of the property as a whole for religious worship to constitute it a “church or place of religious worship”, within s. 59g (2) (b) of the Local Government Act, nor to justify that one room of the main building should be severed for rating purposes it being doubtful whether such a rating severance of a room in a residential building was within the scheme of the Act.
Appeals
These were two appeals against convictions in the District Court of failing to pay local government rates on two properties owned by the Catholic Mission Property Trust, and used respectively as the Archbishop’s residence, and education office. Both properties were also used for residential purposes. The grounds of appeal were:
“(1)    that the learned magistrate erred in law in holding that evidence of use for residential purposes precluded any exemption under the Local Government Act;
(2)      that the findings of the learned magistrate were against the evidence and against the weight of the evidence.”
Counsel
S. M. Freeman, for the appellant.
T. R. Bredmeyer, for the respondent.
Cur. adv. vult.
19 December 1975
PRENTICE DCJ: Two properties owned by the Catholic Mission Property Trust were rated by the Rabaul Town Council. The Trust on 25th June, 1975, was convicted in the District Court of failing to pay rates on these properties. The Trust appeals therefrom to the National Court. The properties concerned were lot 27 of section 110 (the Archbishop’s residence), and an Ulawan Street property used as an Education Office — lot 1, section 19. Both appeals appear to have been listed in the Supreme Court Registry together, as Appeal No. 117 of 1975 (NG). By consent both appeals were heard together. 
The notices of appeal as originally filed, each contained only one ground as follows:
“That the learned magistrate erred in law in holding that as there was evidence that the subject property contained premises which were bedrooms, then the subject property must be occupied solely for residential purposes, and therefore subject to the payment of rates and could not be subject as to part to any exemption under the Local Government Act.”
On the hearing, grounds of appeal as follows were substituted without objection from the respondent Council, viz:
“(1)    that the learned magistrate erred in law in holding that evidence of use for residential purposes precluded any exemption under the Local Government Act;
(2)      that the findings of the learned magistrate were against the evidence and against the weight of the evidence.”
The questions in the first instance as to ratability, involve consideration of whether the Archbishop’s residence inasmuch as it contains an oratory in which the Archbishop celebrates Mass and prays, and which in Canon Law acknowledgedly is constituted a “semi-public oratory”, is within the exemption provided by s. 59g (2) (b) Local Government Act for “churches and other places of religious worship”. And, in relation to the Ulawan Street property, whether the fact, if it be the fact, that it is used as an “education office” for the Archdiocese, brings that property within the s. 59g (2) (a) exemption of “school buildings and ancillary facilities owned or conducted by voluntary education agencies within the meaning of the Education Act 1970”.
DID THE COUNCIL PROPERLY CONSIDER THE OBJECTIONS TAKEN?
The proceedings in respect of which convictions were recorded, were brought under s. 89 (3) of the Local Government Act which is in the following terms:
“A person liable to pay a rate imposed ... who fails without reasonable excuse to pay that rate on or before the date on which it is due ... is guilty of an offence.”
As I understand Mr. Freeman’s submission, under the second amended ground of appeal, it is that the evidence necessarily disclosed that the Trust had a “reasonable excuse” for not paying; in that the correspondence with the Council indicated that it had rejected submissions in protest against rating — on the wrong grounds, without properly considering the s. 59g (2) exemptions.
This argument is based on the references in Exhibits “J” and “N” (Council’s letters to the appellant of dates 6th January and 14th May, 1975) to s. 60 (3) and (4) of the Local Government Act. These sub-sections relate to exemption on the ground of hardship and the time within which such an application must be made.
Mr. Bredmeyer, for the Council, concedes that s. 60 had nothing to do with the points being made by the appellant to Council.
I am satisfied however that it was open to the magistrate to come to the conclusion (to which he apparently did come, though his “reasons for judgment” are meagre and inadequate) upon perusal of Exhibits “G” and “H” and hearing the evidence of Mr. Town Clerk Thomas, that the Council had properly considered the objections as taken under s. 59g, in November 1974, and had rejected them; that it had then in May 1975 considered whether it would entertain a further objection out of time on the same grounds, rejected again the objections on the merits and refused to reopen the matter. I am assured by counsel that the matters raised before me were fully before the magistrate in argument, though the appeal file appears to make no reference to them. Insofar as the appeals rely on a failure by Council to consider objections, I therefore reject the appeals.
WERE THE PROPERTIES ENTITLED TO EXEMPTION?
It has not been argued that I am disentitled from considering these aspects. And in the conduct of the appeals, it seems to have been assumed that if this Court were of the opinion that the evidence disclosed that the properties were not ratable, this could constitute ground for finding “reasonable excuse” for not paying the assessed rates, and hence for my upholding the appeal. I am not sufficiently familiar with the Act nor have I the time available, to discover whether other forms of “appeal” against rating are available.
The learned magistrate, as far as I can discover, said nothing about the Archbishop’s property other than saying in his “reasons for judgment”:
“Dealings (sic) with the grounds for Appeal.
I imposed what I considered to be the right penalty. During inspection on section 110 lot 27 and section 19 lot 1 I found that both blocks were use as a residential block. The fridges contain freezer meat, vegetables etc. Also found that in the rooms there were bed sheets, bed spreads pillows also cupboards full of clothes, eating utensils etc.”
For the appellant it is contended that if use for a residential purpose be shown (as is admittedly the case with the Archiepiscopal residence), that fact does not prevent the property being “exempt”; but it is urged that the evidence does not establish such a user in the case of the Ulawan Street property. Alternatively it is urged that if partly residential user and partly exempt user be found established as to each property, there should be a severance for rating purposes, even though the Act makes no specific provision in that regard. This Court, it is said, should find an exempt user as to portion at least of the Ulawan Street property — as its use as an educational office renders it an “ancillary facility” to a school building.
The only meaning which the Oxford English Dictionary gives for “ancillary” is “subservient, subordinate to”. The word of course comes from the Latin ancilla (handmaid). I do not think it is a natural use of the word nor such as was intended, to describe a diocesan education office as being “subservient or subordinate” to school buildings in general. Though no doubt some support services would issue therefrom to the schools it controls; its role towards them ought I think to be regarded as dominant or controlling, rather than “subordinate or subservient to”. There is the additional difficulty in the appellant’s way that the statute appears to contemplate facilities being ancillary to a particular group of school buildings rather than to numerous buildings scattered widely through a province or several provinces. It is my opinion therefore that though a use other than, as well as for, residential purposes has been shown in the Ulawan Street property — that use is not such as to render it exempt under s. 59g (2) (a). The very substantial questions of whether the Catholic Mission Property Trust can be said to be a “voluntary education agency” and whether the “school buildings” and those “ancillary” must be owned by the same agency to come within the exemption were not argued before me.
As to the point involving use for “religious worship”; a number of cases were cited to me by way of construing the sub-section concerned. Thus, it has been held that a building used for masonic administration purposes was not “occupied for purposes of an organization ... whose main objects ... are otherwise concerned with the advancement of religion” — this on a consideration of whether the laudable objects of free masonry could be found to involve “advancement of religion” — United Grand Lodge v. Holborn Borough Council [dclvi]1. This case and the phrases involved therein seem altogether too far removed to be of any real help to me here. In Y.M.C.A. v. Sydney City Council [dclvii]2, it was held that it is sufficient to set up an exemption if, substantially, land is used for exempt purposes even if not solely or exclusively so used; the relevant exemption in the statute there being construed, being for “land belonging to a public benevolent institution ... used or occupied by the institution for the purposes thereof”. Under a section exempting from rating a “building used solely for public worship”, emphasis mine, (including appurtenances thereto belonging), the presbytery of St. Mary’s Cathedral, Sydney, was held not exempt, Kelly v. Municipal Council of Sydney [dclviii]3. Both these cases appear helpful to some extent.
Mr. Bredmeyer has urged that though the phrase with which I am concerned is “place of religious worship”, not as in other statutes “used for public worship”; an element of public participation would normally be sought to establish “a place of religious worship”. I do not think it can have been intended that the mere use of one room of a building for private orisons or devotions, or the setting-up of a shrine on land, or the mere acknowledgement that a particular giant banyan tree was the residence of a tutelary masalai, could render exempt from rating the land on which the shrine was built, or diwai grew. There was some force in this contention of Mr. Bredmeyer’s, when considering whether there was such a substantial user for an exempt purpose as to set up exemption of the whole (Y.M.C.A. case[dclix]4), of the Archbishop’s residence. The only evidence on the point is that the Archbishop holds daily service (presumably his morning Mass) in the one room which is fitted as an oratory, for himself and his staff of two nuns. Apart from this user and its categorization in Canon Law as an oratory which would enable a baptism or wedding to be held in the room concerned, no evidence was forthcoming that any such ceremonies had occured therein or that anyone other than the Archbishop and his staff had prayed or celebrated Mass there; except that a witness, Father O’Neill, had once recited his office there.
I consider there is not such a substantial user of the property as a whole for religious worship to constitute it “a church or other place of religious worship”; nor to justify that one room of the main building (I have myself been through the residence which constitutes the main building and observed an adjoining building which is the nuns’ quarters) should be severed for rating purposes as was apparently done in a Canadian city in the case of Hodge v. Moose Jaw City[dclx]5 of which only a note is available to me in E.E.D. Vol. XXXVIII, p. 542, note 400. I have considerable doubt whether such a rating severance of a room in a residential building, can in any event be effected under the scheme of the Act.
I remain unpersuaded therefore that the two allotments should be held each or either, exempt from rating. In my opinion no error in the proceedings of the District Court has been exhibited.
I therefore reject the appeals and confirm the convictions.
Appeals dismissed.
Convictions confirmed.
Solicitor for the appellant: F. N. Warner Shand.
Solicitor for the respondent: B. W. Kidu, State Solicitor.

[dclvi][1957] 3 All E.R. 281.
[dclvii](1954) 20 L.G.R. 35.
[dclviii](1920) 28 C.L.R. 203.
[dclix](1954) 20 L.G.R. 35.
[dclx][1925] 1 W.W.R. 948.