A declaratory judgment is a statement a Court makes to resolve a legal issue without coercion. Unlike court orders, declaratory judgments are not coercive in nature. However, if a party refuses to abide by a declaratory judgment, they may face a coercive order against them. Courts can issue declaratory judgments on any matter of fact or law. Parties may seek declarations to clarify their legal rights, the meaning of a law, or their duties and interests, particularly in disputes.

Typically, parties approach the Supreme Court of NSW (Equity Division) with a Summons or Statement of Claim and an affidavit in support. Obtaining a declaration puts the issue beyond dispute. Applying a declaratory judgment is appropriate when the parties seek to clarify their legal rights and are willing to respect and act upon their established legal position.

Superior courts have the inherent power to grant declaratory judgments, subject to exclusion by legislation and the Court’s discretion in a given case. Generally, Declaratory relief is granted only to determine legal controversies, not to answer abstract or hypothetical questions, and only where the person seeking relief is interested.

A court may issue a declaratory order in its ancillary jurisdiction where the relief sought is ancillary to some principal relief. Legislation allows Courts to make declaratory orders, such as the (NSW) Supreme Court Act 1970 s 75.

Background

In 1862, the Crown reacquired about 200 acres of land in “Haslem’s Creek” (now known as Rookwood), dedicated by the Governor by proclamation dated April 17 1868, as a burial ground for burying the dead of the Roman Catholic denomination. Additional land was dedicated in 1889 for the same purpose and was vested in the trustees of the Roman Catholic Church. 

Since 1988, the land at Rookwood Cemetery has been treated as a “reserve” under Crown Lands legislation, leading to the creation of the body corporate “Catholic Cemetery Trust, Necropolis” and the appointment of the Catholic Cemeteries Board (CCB) to manage its affairs. In 2009, “Catholic Cemeteries Trust, Necropolis” was dissolved, and a new “reserve trust,” the Catholic Metropolitan Cemeteries Trust (CMCT), was constituted with the CCB appointed to manage the affairs of CMCT as the trustee of the Catholic portion of land. Legislation enacted in 2004 and 2009 repealed the Necropolis Act 1901. 

The Cemeteries and Crematoria Act 2013 (NSW) established a new regulatory regime for cemeteries and crematoria. Introducing reforms primarily aimed to address the reduction in burial space, particularly in the greater metropolitan Sydney area. The Act established Cemeteries and Crematoria NSW (CCNSW) as a regulatory agency for the interment industry, created a register of all cemeteries and crematoria in NSW, developed codes of practice for the interment industry, and established a consistent regulatory basis for the management of all cemeteries and crematoria in NSW, regardless of their ownership.

Part 4 of the Act came into effect on June 25 2018, along with the Cemeteries and Crematoria Amendment Regulation 2018 (NSW) (Regulation), which introduced a new interment rights system for NSW. The new system significantly changes the requirements for granting interment rights by cemetery operators and permits all cemeteries to grant renewable interment rights, subject to specific conditions.

The matter

In the case of Rookwood General Cemeteries Reserve Land Manager v Attorney General NSW [2022] NSWSC 173, Parker J decided on a similar case involving the Anglican portion of land at Rookwood Cemetery. He agreed that if the Necropolis Act of 1867 established a charitable trust in equity, the repeal of the Necropolis Act of 1901 abolished it by legislation in 2004 and 2009. Instead, he concluded that the proceeds of the Anglican portion of land were held on statutory trust, which should be managed under the Crown Land Management Act 2016.

After highlighting some concern about the possibility of using funds accumulated over many years from the operation of a religious burial ground for secular purposes, the Court noted that the use of the funds in the future will ultimately be under the control of the Minister. Stating that there is no reason to believe that the Minister will be insensitive to the issue, and it may even be a situation where Parliament should intervene to strike a balance between competing factors and clarify the law regarding assets left over when the public purpose for the use of Crown land ceases or changes in nature.

The parties agreed that legislation abolished the Anglican Cemetery Land Trust on July 1, 2018; funds generated from the operation of the Anglican Cemetery were subject to section 3.16 of the 2016 Crown Lands Act, leaving no room for an equity trust for those funds. However, both parties’ counsels argued that the proceeds from the Anglican Cemetery Land before July 1, 2018, were subject to a charitable trust for the same purposes as the trust that still existed over the land.

The appeal

In light of all parties claiming that Parker J incorrectly decided Rookwood General Cemeteries Reserve Land Manager, the plaintiffs filed a summons on November 10, 2023, in Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 seeking declaratory relief in the Equity Division, with the Attorney General of New South Wales named a defendant. The plaintiff referred the summons to the Court of Appeal.

There were four issues before the Court.

Firstly, the question of whether the Necropolis Act 1867 and proclamations in 1868 established a charitable trust.

Secondly, if there was a charitable trust, whether legislative action in 2004, 2009 or 2013 abolished it;

thirdly, if a charitable trust survived subsequent legislative action and the trust property was other than land at Rookwood, would it survive the changes made by the Crown Land Management Act 2016.

Fourthly, if a charitable trust continued to exist, what would its charitable purpose be?

The Court held that the Necropolis Act 1867 and the proclamations made in 1868 created a charitable trust recognized in equity. The Court also held that the charitable trust of the Catholic portion of land at Rookwood Cemetery continued despite legislation enacted between 1901 and 2013. The Court found that the approximately $160 million in proceeds of CMCT was subject to the same charitable trust as the land. 

All parties agreed that on February 29 2024, the Crown Land Management Act 2016 (NSW) will abolish CMCT and transfer its assets, rights, and liabilities to CCB, which will become the “Crown Land Manager” of the land. 

Clause 11(2A) of Sch 7 of the Crown Land Management Act 2016 (NSW) will abolish the trust over the Catholic portion of land at Rookwood Cemetery on February 29 2024. However, this does not include any proceeds from land use. 

The first plaintiff was the holder of the Catholic portions of Rookwood Cemetery (the Catholic Cemetery) before July 1 2018 under a charitable trust, which allowed the burial of Roman Catholic individuals in the Catholic Cemetery.

From July 1, 2018, to February 29, 2024, the first plaintiff, managing the Catholic Cemetery, acted as the transitional reserve trust. The proceeds of the Catholic Cemetery (excluding trust land) were held under a charitable trust during this period allowing the Catholic Cemetery to continue as a burial ground for the Roman Catholic denomination.

Starting from February 29 2024, the Crown land manager will take over the proceeds of the Catholic Cemetery (excluding trust land) under a charitable trust ensuring that the Catholic Cemetery remains a burial ground for Roman Catholic individuals.

CMCT’s financial report for the year ended June 30 2023, disclosed that the proceeds were $160 million. 

However, cl 11(2A) of Sch 7 of the Crown Land Management Act 2016 would not abolish the trust over the proceeds derived from the use of the land despite abolishing the trust over the land itself. Finally, the Court held that the trust’s charitable purpose did not change upon the enactment of the Necropolis Act 1901, and the purpose of the trust remains the use of the land as a burial ground for burying the dead of the Roman Catholic denomination.

The Crown land manager of the Catholic area of Rookwood Cemetery will hold the proceeds of the Catholic section to use it as a burial ground for burying the dead of the Roman Catholic denomination, subject to a charitable trust, as concluded by the Court of Appeal effective from February 29 2024. 

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