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Supreme Court Civil Procedure Act 1932 (No. 58 of 1932)
Requested:  21 Apr 2014
Consolidated as at:  21 Feb 2012

PART VI - Proceedings at the Suit of, and Against, the Crown

53. Interpretation

In this Part, unless the contrary intention appears –

a trust for charity generally includes not only a trust for charity in general but also any trust for any charitable object or purpose, other than a particular charity, but does not include "a trust for a public purpose" as defined by section 59;
charitable trust and trust for charity include any devise, bequest, gift, or other disposition (including an oral trust), creating a trust in favour of charity, whether charity generally or a particular charity;
charity generally includes not only charity in general but also any charitable object or purpose other than a particular charity, but does not include "a trust for a public purpose" as defined by section 59;
charter includes any letters patent, order-in-council, or other instrument whatsoever made, granted, or issued by the Government of this State;
disposition includes any devise, bequest, trust, or gift, whether the same is or is expressed to operate or take effect immediately or in futuro, and whether the estate or interest created or disposed of is vested or contingent, and includes a disposition creating, granting, transferring, or passing any executory interest or any possibility coupled with an interest;
interference with a public right and interference with the public right mean any omission to perform a public duty which the Court has jurisdiction to enforce the performance of, and any act which the Court has jurisdiction to restrain as being a public nuisance or other injury to the public;
particular charity means a specified individual charity but does not include "a trust for a public purpose" as defined by section 59;
person means any individual or individuals and (subject to the negative provision of this definition) any body corporate, but does not include a public authority or a public officer;
protection of any public right includes the enforcement of any public duty which the Court has jurisdiction to enforce performance of, and the prevention of any public nuisance or other injury to the public which the Court has jurisdiction to restrain, and the restraining of the continuance or repetition of any public nuisance or other such injury to the public as aforesaid;
statute means any Act of the Parliament of Tasmania.
The terms "charity" and "charitable" are used in their legal sense.

54. 

55. Actions by the Crown in respect of rights which do not directly concern the Crown

      (1) Except in cases where it is otherwise provided (either expressly or by implication) by this Act or some other statute (whether passed before or after the commencement of this Act), or where some special provision is made by some other statute (whether passed before or after the commencement of this Act), all actions –

(a) for the protection of any public right, including any action to restrain any person, public authority, or public officer from contravening or exceeding any power or authority conferred upon such person, public authority, or public officer by any statute or charter, and the contravention or exceeding of which tends to the public injury, or from contravening or unlawfully evading any provision for the protection of the public contained in any statute or charter;

(b) on behalf of the Government of this State in respect of any other right or interest which does not directly concern His Majesty in right of this State, but which is enforceable by action on his behalf –

shall be instituted by and in the name of the Attorney-General, or by some person, public authority, or public officer as relator in the name of the Attorney-General, and not otherwise.

      (2) Subject to the Rules of Court, every such action shall be instituted and prosecuted in the same form and manner as an action between subject and subject, and not otherwise.

      (3) But nothing in this section contained shall preclude any person from instituting and prosecuting an action in his or its own name (and it is hereby declared that a person is so entitled to sue) in any of the following cases:

(a) Where the contravention or exceeding of any such power or authority as is mentioned in subsection (1)(a), or the contravention or unlawful evasion of any provision for the protection of the public contained in any statute or charter, or any other interference with a public right, involves or will involve an interference with or the violation of some private right of such person;

(b) Where, although no private right of such person is interfered with or violated, he or it has suffered, or will suffer, in respect of a public right, and from the interference therewith, particular damage, which is direct and substantial, and peculiar to himself or itself, or beyond that which has been or will be suffered by the public generally;

(c) Where a statute confers on such person some special protection or benefit, and the action is instituted in respect of or to prevent a breach of any provision in such statute conferring such protection or benefit.

      (4) And nothing in this section contained shall preclude any public authority or public officer from instituting and prosecuting an action in its or his own name (and it is hereby declared that any public authority or public officer is so entitled to sue) in any of the following cases:

(a) Where the action is brought to prevent injury to, or to recover damages in respect of any injury to, any property belonging to, or vested in, or under the control or management of, such public authority or public officer, or to recover damages in respect of, or to restrain, any nuisance which injuriously affects such public authority or public officer as owner or occupier of such property, or in respect of its or his control or management thereof;

(b) Where such public authority or public officer is by any statute invested or charged with the control or management of any property or any undertaking, operation, function, or matter of public concern, and the action is instituted in respect of or to prevent an interference with that control or management;

(c) Where a statute confers on such public authority or public officer some special protection or benefit, and the action is instituted in respect of or to prevent a breach of any provision in such statute conferring such protection or benefit.

      (5) But subsection (4)(b) shall not be so construed as to authorize a public authority or public officer to institute an action in its or his own name for the purpose of enforcing any by-law or regulation made by such public authority or public officer, or otherwise putting in suit any public wrong, except in cases where the right to institute an action in its or his own name for any such purpose is conferred on it or him (either expressly or by implication) by some statute (whether passed before or after the commencement of this Act).

      (6) In any action instituted by and in the name of the Attorney-General, or by any person, public authority, or public officer, as relator in the name of the Attorney-General, for the protection of any public right, including any action to restrain any person, public officer, or public authority from contravening or exceeding any power conferred upon him or it by any statute or charter, and the contravention or exceeding of which tends to the public injury, or from contravening or unlawfully evading any provision for the protection of the public contained in any statute or charter, it shall not be necessary to allege or prove any actual injury to the public.

56. Actions to establish trust for charity generally

      (1) Subject to the provisions of subsection (3), every action for a declaration that any property is subject to, or for any judgment or order to establish or enforce the execution of, a trust for charity generally, or for any particular charity which cannot be represented, or properly represented, in such action, shall be instituted by and in the name of the Attorney-General, or by some person as relator in the name of the Attorney-General, and not otherwise.

      (2) Subject to the Rules of Court, every such action shall be instituted and prosecuted in the same form and manner as an action between subject and subject, and not otherwise.

      (3) But nothing in this section shall operate to preclude any person otherwise entitled so to do from instituting in his or its name any action or any other original proceeding, authorized by any statute or the Rules of Court, for the administration of the estate of any deceased person, or for the administration or execution of any trust, or for the determination of any question or matter arising in the administration of the estate of a deceased person, or in the administration or execution of any trust, notwithstanding that such action or other original proceeding seeks or involves the determination of the question, whether the object or purpose of any disposition is charitable, or of the question whether any property which is a subject of the action or other original proceeding is or is not subject to any trust for charity, or seeks or involves the administration or execution of any trust for charity; but, in any case in which the action or other original proceeding seeks or involves the determination of the question whether the object or purpose of any disposition is charitable, or whether property which is a subject of the action or other original proceeding is or is not subject to a trust for, or seeks or involves the administration or execution of a trust for, charity generally, or any particular charity, which is not or cannot be represented, or properly represented, in the action or other original proceeding, the Attorney-General shall be made a defendant to the action or other original proceeding.

57. Actions to recover or protect property subject to trust for charity

      (1) Except in cases where it is otherwise provided (either expressly or by implication) by some other statute (whether passed before or after the commencement of this Act), or where some special provision is made by some other statute (whether passed before or after the commencement of this Act), every action to recover or protect any property subject to a trust for charity generally, or for any particular charity which cannot be represented or properly represented in such action, shall be instituted by and in the name of the Attorney-General, or by some person as relator in the name of the Attorney-General or by and in the name of any person or public officer in whom such property is vested subject to such trust, and not otherwise.

      (2) Except in cases where it is otherwise provided (either expressly or by implication) by some other statute (whether passed before or after the commencement of this Act), or where some special provision is made by some other statute (whether passed before or after the commencement of this Act), every action to restrain or remedy any abuse or misapplication or illegal administration of any property subject to any charitable trust shall be instituted by and in the name of the Attorney-General, or by some person or public officer as relator in the name of the Attorney-General, or by and in the name of some person interested in the administration of the trust, and not otherwise.

      (3) Subject to the Rules of Court every such action which is instituted by and in the name of the Attorney-General or by some person as relator in the name of the Attorney-General, shall be instituted and prosecuted in the same form and manner as an action between subject and subject, and not otherwise.

      (4) In any case in which any such action as is mentioned in subsection (1) is instituted by and in the name of any person or public officer in whom the property subject to the trust is vested, or in which any such action as is mentioned in subsection (2) is instituted by and in the name of some person interested in the administration of the trust, the Attorney-General shall be made a defendant to the action.

58. Cases in which Attorney-General is required to be made a party or cited

      (1) Subject to the provisions of subsection (4), and of section 62, and the Rules of Court, the Attorney-General shall be made a party to, or be cited to see proceedings in (according to the form of the proceeding), every original proceeding not instituted in his name –

(a) which is instituted for the purpose of obtaining probate, or the revocation of probate, of any will or instrument propounded as, or alleged to be, a will which contains any disposition in favour of, or which might operate in favour of, charity generally;

(b) which is instituted for the purpose of obtaining any judgment or order as to the validity of, or which would involve the determination of the question of the validity of, any will or instrument propounded as, or alleged to be, a will, or any deed or other instrument whatsoever, which contains any disposition in favour of, or which might operate in favour of, charity generally;

(c) which is instituted for the purpose of obtaining probate, or the revocation of probate, of any will or instrument propounded as, or alleged to be, a will which contains any disposition in favour of, or which might operate in favour of, any particular charity, if for any reason any such charity which might be affected by the proceeding cannot be represented or properly represented in the proceeding;

(d) which is instituted for the purpose of obtaining any judgment or order as to the validity of, or which would involve the determination of the question of the validity of, any will or instrument propounded as, or alleged to be, a will, or any deed or other instrument whatsoever which contains any disposition in favour of, or which might operate in favour of, any particular charity, if for any reason any such charity which might be affected by the proceeding cannot be represented or properly represented in the proceeding;

(e) which is instituted for the purpose of obtaining any judgment or order as to whether any devise, bequest, trust, gift, or other disposition purported to be made or created by any will, deed, or other instrument whatsoever, or any oral trust, in favour of charity generally, or of any particular charity, which cannot be represented or properly represented in the proceeding, is a valid disposition, or as to whether any property, the subject of any disposition for any charitable purpose is applicable cy-pres, or for the purpose of obtaining any judgment or order as to the construction of, or which would involve the construction of, any devise, bequest, trust, gift, or other disposition made or created by any will, deed, or other instrument whatsoever, or any oral trust, and which devise, bequest, trust, gift, or other disposition operates or might operate in favour of charity generally;

(f) which is instituted for the purpose of obtaining any judgment or order as to the construction of, or which would involve the construction of, any devise, bequest, trust, gift, or other disposition made or created by any will, deed, or other instrument whatsoever, or any oral trust, and which devise, bequest, trust, gift, or other disposition operates or might operate in favour of any particular charity, if for any reason any such charity which might be affected by the proceeding is not or cannot be represented or properly represented in the proceeding;

(g) for the application cy-pres of any property subject to any charitable trust, or the settlement, alteration, or variation of any scheme for the administration of, or of any rules or regulations for the internal conduct or management of any charitable trust, or for any other purpose affecting the administration of or otherwise touching or concerning any charitable trust;

(h) to which the heir-at-law of any deceased person is a necessary party, if such heir-at-law cannot be found, or if there is no heir-at-law of such deceased person;

(i) to which the next-of-kin of any deceased person are necessary parties, if such next-of-kin cannot be found, or if there are no next-of-kin of such deceased person;

(j) in which any judgment or order might be given or made which would affect or concern some right or interest of His Majesty in right of this State.

      (2) For the purposes of this section it shall be immaterial that no relief or claim is sought or made against His Majesty in right of this State.

      (3) Subject to the provisions of subsection (4) nothing in this section shall affect the existing law and practice of the Court as to other cases in which the Attorney-General is required to be made a party to any proceeding in the Court or to be cited to see any proceeding in the Court.

      (4) It shall not be necessary to have a scheme settled in any case in which the subject-matter of a trust for charity generally is money (whether a residue, a sum in gross, or income), the application or distribution of which is committed to a specified person, or specified persons, who is or are clothed (whether by the terms of the trust or otherwise) with an absolute discretion with respect to such application or distribution, but nothing in this subsection contained shall exclude, restrict, or qualify the jurisdiction or power of the Court or any judge thereof to direct a scheme in any such case or shall affect the powers of the Court or a judge under section 63.

59. Actions for declaration that property is subject to a trust for public purposes

      (1) Except in cases where it is otherwise provided (either expressly or by implication) by some other statute (whether passed before or after the commencement of this Act), or where some special provision is made by some other statute (whether passed before or after the commencement of this Act), every action instituted for a declaration that any property is subject to a trust for a public purpose as defined in this section, shall be instituted by and in the name of the Attorney-General, or by some person, public authority, or public officer as relator in the name of the Attorney-General, and not otherwise.

      (2) Subject to the Rules of Court, every such action shall be instituted and prosecuted in the same form and manner as an action between subject and subject, and not otherwise.

      (3) For the purpose of this section and section 60 all rates, taxes, duties, assessments, and other funds and moneys whatsoever levied, raised, collected, or received under or by virtue of any statute for any public purpose, and any fund formed from the proceeds of any such rate, tax, duty, assessment, fund, or moneys, and all property whatsoever which is required by any statute to be applied or used for any public purpose, shall be deemed to be property subject to a trust for a public purpose.

      (4) But nothing in this section or in section 60 shall be so construed as to confer on the Court or any judge thereof any jurisdiction which was not vested in the Court immediately before the commencement of this Act.

60. Actions relating to administration of property subject to trust for public purposes

      (1) Except in cases where it is otherwise provided (either expressly or by implication) by some other statute (whether passed before or after the commencement of this Act), or where some special provision is made by some other statute (whether passed before or after the commencement of this Act), every action –

(a) for any judgment or order to enforce the execution of any trust in respect of any property which is subject to a trust for a public purpose, as defined in section 59, shall be instituted by and in the name of the Attorney-General, or by some person, public authority, or public officer, as relator in the name of the Attorney-General, and not otherwise;

(b) to restrain or prevent any abuse, misapplication or illegal administration of any such property as is mentioned in paragraph (a), shall be instituted by and in the name of the Attorney-General, or by some person, public authority, or public officer as relator in the name of the Attorney-General, or (if the property, in respect of the abuse, misapplication, or illegal administration of which the action is instituted, is vested in or is under the control or management of any public authority) by and in the name of some person who has an interest in such public authority, either by reason of being entitled to vote at or take part in the election or appointment of its members or officers, or by reason of being liable to any rate, tax, assessment, duty, or charge levied, imposed, or made by such public authority or on some other ground, and not otherwise;

(c) for any judgment or order relating to the application or administration of any such property as is mentioned in paragraph (a) (not being an action for any of the purposes mentioned in paragraph (a) or paragraph (b)), shall be instituted by and in the name of the Attorney-General, or by and in the name of some person, public authority, or public officer as relator in the name of the Attorney-General, or by and in the name of the person, public authority, or public officer in whom or which the property is vested, and not otherwise.

      (2) Subject to the Rules of Court, every such action instituted by and in the name of the Attorney-General or by some person as relator in the name of the Attorney-General shall be instituted and prosecuted in the same form and manner as an action between subject and subject, and not otherwise.

      (3) In any case in which any such action is instituted by and in the name of the person, public authority, or public officer in whom or which such property is vested, or some person having such an interest as aforesaid, the Attorney-General shall be made a defendant to the action.

61. Relators

      (1) No action for any of the purposes mentioned in this Part shall be instituted by any person, public authority, or public officer as relator in the name of the Attorney-General, unless the authority of the Attorney-General in that behalf has been previously obtained.

      (2) Subject to the provisions of subsection (1) any person may act as a relator in any action in the name of the Attorney-General for any of the purposes mentioned in this Part.

      (3) In any case in which an action is instituted by a person as relator in the name of the Attorney-General, it shall be immaterial –

(a) that the relator has no private interest in the subject-matter of the action;

(b) what the motive of the relator may be;

(c) what may be the quantum of public benefit which will or may result from the action.

      (4) Subject to the Rules of Court, any person who has been authorized by the Attorney-General to institute an action as relator in the name of the Attorney-General for any of the purposes mentioned in this Part may be joined as a co-plaintiff with the Attorney-General in any case in which the relator has any cause of action arising out of the act, omission, or matter in respect of which the Attorney-General has authorized the relator to institute the action.

      (5) In any case in which an action is instituted by a public authority or public officer as relator in the name of the Attorney-General, it shall be immaterial –

(a) what the motive of the relator may be;

(b) what may be the quantum of public benefit which will or may result from the action.

      (6) Subject to the Rules of Court, any public authority or public officer which or who has been authorized by the Attorney-General to institute an action as relator in the name of the Attorney-General may be joined as co-plaintiff with the Attorney-General in any case in which such public authority or public officer has any cause of action arising out of the act, omission, or matter in respect of which the Attorney-General has authorized such public authority or public officer to institute the action.

      (7) Subject to the Rules of Court, a pending action may, by amendment of the writ of summons or other prescribed process, and the pleadings, and by the authority of the Attorney-General, be converted into an action by a relator in the name of the Attorney-General.

      (8) Every action instituted by a relator in the name of the Attorney-General shall (except as provided by subsection (9)) be deemed to be the Attorney-General's action, and the Attorney-General shall have full power to control the conduct of it.

      (9) For the purposes of the costs of an action instituted by a relator in the name of the Attorney-General the action shall (subject to any order of the Court or a judge) be deemed to be the action of the relator.

62. Proceedings relating to property subject to trust for particular charities

      (1) The Attorney-General need not be a party to, or be cited to see proceedings in, any proceeding in the Court concerning any devise, bequest, trust, gift, or other disposition made or created by any will, deed, or other instrument, or any oral trust, in favour of a particular charity, or concerning the administration of any property subject to a trust for a particular charity, or any other proceeding affecting a particular charity, except –

(a) in the cases mentioned in subsection (3) of section 56, section 57, and paragraphs (c), (d), (e), and (f) of subsection (1) of section 58;

(b) where a scheme is required to be or has been settled for the administration of, or any rules or regulations are required to be or have been made for the internal conduct or management of, the charity; or

(c) in cases where the property subject to the trust is devised or bequeathed or otherwise given to, or disposed of in favour of, any particular charity upon any trust or trusts not corresponding to those upon which its general property is held.

      (2) It shall not be necessary in any case to have a scheme settled in respect of any property devised, bequeathed, or otherwise given to, or disposed of in favour of, any particular charity as part of its general property unless the property shall become applicable cy-pres.

63. Power of Attorney-General at any time to institute proceedings with respect to any charitable trust

      (1) The Attorney-General may at any time, either ex officio or on the relation of any person or public officer, institute any proceedings he may deem necessary or proper to establish or enforce the execution of any trust for any charitable purpose, or to recover or protect, or to remedy or prevent any abuse, misapplication, or illegal administration of, any property affected by a trust for any charitable purpose, or to provide for the administration of any such trust.

      (2) The Court or a judge may, in any proceeding in the Court, order or direct that the Attorney-General –

(a) be made a party to the proceeding, and for such purpose may make any order for the amendment of the proceeding or otherwise; or

(b) be cited to see proceedings in the proceeding.

64. 

65. 

66. 

67. 

68. 

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72. 

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CURRENT VIEW: 11 Dec 2009 - 1 Oct 2012
VIEW THE SESSIONAL VERSION