Appendix (D) Developments since publication of The enterprising life of Dr Henry Backhaus in 2008

 

This material supplements Part 6 of the book with developments up to the end of 2010. It follows p136 of the book.

 

Sale of a large area of Backhaus Estate land

 In September 2009, thirty two lots of ‘prime river frontage and farm land’ held by the trustees of the estate were advertised for sale by tender[1]. The total area involved was 3755 acres, located in the Axedale, Fosterville and Runnymede districts. This was almost all of the land still retained by the estate outside the Bendigo city area.

 The advertisement caused a great deal of controversy and received extensive coverage in the regional press, radio and television. There were two main areas of objections that were raised to the sale, one of these being on principle.  There was probably a degree of sentiment associated with this since the land had been acquired by Dr Backhaus from the 1850’s for farming purposes and there was concern that this purpose would be lost in development of the land for other purposes. The second objection related to the process associated with the sale. The concern here was that the existing leaseholders, many of whom had farmed the land for several generations, had been treated in an insensitive way, having battled with a severe drought for years and then been given insufficient time to consider their options.

 The trustees’ response to the public controversy was to issue a three sentence statement that: ‘the estate is a private entity administered by three trustees in accordance with the will of Dr Backhaus and a court approved scheme’; that ‘the sale is for the future benefit of the estate’ and that ‘the Catholic church does not own the properties but simply benefits from them’.[2]

 One part of ‘the statement, namely the use of the term ‘private entity’ was puzzling to some and intriguing to others. In ordinary language, the term would be understood to mean that the Backhaus Estate was something that was private in nature and hence of no concern to the public or anyone other than the trustees. However this interpretation is at odds with its well established legal position as a charitable trust.

 

 Charitable trusts and the Backhaus Estate

 Although trust law can be complex, there are certain elements of a charitable trust which are very clearly defined and provide the average person with a useful picture of its nature. Legal textbooks indicate that a charitable trust is a trust for a purpose, not a person. In addition, a necessary feature of a charitable trust is that it exists for the benefit of the public or a section of the public. One class of charitable trust is concerned with the advancement of religion. In the case of the Backhaus trust, the Catholic church in Bendigo is the beneficiary. The state Attorney General, as protector of the public interest, is always a party to any legal proceedings involving a charitable trust.[3]

 The Backhaus trust has been recognised throughout its history as a charitable trust. In a judgement in the Supreme Court in 1976, the sentence ‘This is clearly a charitable trust ……’ was used. Later in the judgement, the business of the trust was described by the judge in the following way: ‘I believe that the whole of the policy of the settler (that is, Dr Backhaus) in creating this trust was to have a trust in real estate’[4]

 Legal texts also indicate that trustees of a charitable trust have a duty to strictly adhere to the trusts of the property they administer and unlike private trusts may act by a majority in decision making. Trustees do not have to give reasons for their actions. They are not bound to do more than hand over the income to the appropriate officer of the institution involved. The devotion to charity is effected by the institution itself applying the income to its purposes and objects.[5]

 According to the will of Dr Backhaus, the income of the trust is to be paid to the ‘clergyman of St Kilian’s church, provided that he is a secular priest’ and this income is to be used ‘for religious and useful purposes in connection with that church’. At the time of the death of Dr Backhaus, the Catholic people in the Bendigo region were the community of St Kilian’s church. Since that time, the region has been divided into a number of parishes, one of which is called St Kilian’s. For many years, it seems to have been presumed that the entire church in the Bendigo region is the current beneficiary under the will. However there is an anomaly in this approach as the clergyman of St Kilian’s parish as it currently exists receives the income and there is no involvement of other parish units in the rest of the Bendigo region.

 With changes in social attitudes that have occurred over the years, an expectation has developed that the Catholic population in the region should be provided with information from time to time about the activities of the Backhaus trust. This expectation has not received any recognition from the trustees of the estate who have always followed an exclusively legalistic approach to their role. As a consequence, a disjunction has occurred between the trustees and the Catholic population and this is illustrated in the controversy that was mentioned previously. It seems likely that a deal of this could have been avoided if the trustees had made available some information about decisions they had taken regarding the future of the estate. Although it is clear in a legal sense that trustees are not required to provide information to a beneficiary or the public in general, there is also nothing that prevents their providing selected information should they wish. The public relations value of doing so is obvious.

 Until the publication of this book, the Catholic population had no knowledge of the activities of the trust, other than that reported in very old newspapers. In effect, this meant the period 1883-1897 when major court decisions were reported in detail. The extensive court proceedings in the period 1955-62 were largely unreported. In the last sixty years, even the names of trustees have not been made public and it has required extensive searching of land and other records to discover them.[6]  This mode of operation by the trustees has produced a complete vacuum in public knowledge of the estate. In such circumstances, it is not surprising that rumour becomes rife. In the most recent controversy, it was unclear to all, except the trustees, as to the basis on which the land was being sold and to what end. In Part 6 of this book, reference was made to a scheme of management that was approved by the court in 1962. This scheme gave the trustees power to sell any parcel of land, subject to the consent of the Attorney General of Victoria and the Clergyman of St Kilian’s, provided its value did not exceed $120,000.[7] However, at the time of the land sale controversy, it was not known that there had been another case in the Supreme Court in 2007 which raised this amount to one million dollars, and added a provision to clause 22 which indexed this value in line with changes in land value[8].

 Information provided by the trustees to the court in 2007

 Considerable detail relevant to the sale is available in the court papers associated with the above case. Some of the parts of specific interest to the Catholic community are given below.

 The trustees believe that the farming lands are not providing an adequate return compared with the market value of the properties. Valuations show that the farming land amount to 24 percent of the total real estate of the trust but are responsible for only 6 percent of the income generated, and represent a return of only 1.3 percent. In the case of the commercial property, the return is 6.1 percent.

 The trustees do not wish to alter the character of the trust, believing it appropriate for its activities to be the holding and leasing of real estate in accordance with the terms of the will. They desire more flexibility in selling properties to take advantage of market trends and ensure the trust capital is employed to the best advantage.

 The trust is upgrading some of its properties in the central business district of Bendigo and requires capital to do this and to redevelop several sites.

 This particular case sought approval to sell two specific pieces of land, one of 1142 acres at Barnadown and another of 370 acres at Longlea, to change the value mentioned in clause 22 of the scheme of management to one million dollars and to add a clause which indexed this value. The court approved the requests. The sale of the parcel of 1142 acres appears to have occurred early in 2008.[9] Its value was some  two million dollars. More recently, about half of the other parcel of land has been subdivided and been advertised for sale at a price of about $1.4 million.[10]

 The advertised sale of the 32 lots of land in September 2009 appears to be made in line with Section 22 of the scheme of management as amended in 2007, although the Attorney General has not given consent to any sales as at December 2010.[11] After the time for calling of tenders for the land had passed, about half the land was then advertised for sale at set prices.[12] These suggested that the sale of the thirty two lots was expected to raise some four million dollars.

 The complex history of the Backhaus trust

 The trust has an intriguing history. The executors of the estate, who became its first trustees, were close personal friends of Dr Backhaus: John Crowley, a hotel keeper, Arthur Magee, a timber merchant and Rev William Tierney. As the original trustees aged or died, Martin Crane who was Bishop of Sandhurst, saw the opportunity to take effective control of the estate. He achieved this by way of a deed made in June 1895. One month prior to this, the two surviving trustees - Crowley and Magee - had appointed the trustee company Sandhurst Trustees to the place previously occupied by Tierney (deceased). This group then entered into an agreement with Bishop Crane that involved the retirement of Magee and his replacement by Rev Dr Sylvester Barry. The deed also included a provision for the appointment of future trustees, namely, that there would be three trustees comprising the trustee company, a priest nominated by the bishop and a layman whose nomination had been agreed to by the bishop.[13] In practice, this gave Bishop Crane control of the trust.

 There was however, a complicating factor since the will of Dr Backhaus specified that the income from the trust was be paid to the ‘clergyman of St Kilian’s church’ only if he was a secular priest. Bishop Crane was a member of a religious order - the Order of St Augustine - and so was prevented from being ‘the clergyman of St Kilian’s church’ in the context of the will. This complication however was side stepped by the bishop’s appointment of Dr Barry, a secular priest, as Parish Priest of St Kilian. However, while Dr Barry was parish priest, under church law he was also subject to Bishop Crane and so the money was passed on to the bishop. The whole process therefore became an exercise in legal semantics of little real consequence.

 In 1930, the parish priest of St Kilian’s, who was then Monsignor Rooney, died. The bishop at this time was John McCarthy who was a secular priest. Bishop McCarthy decided at this stage that he would declare St Kilian’s parish to be a mensa episcopalis parish. Under church law, this automatically made him the ‘clergyman of St Kilian’s church’.  The bishop thus became the direct recipient of the income from the trust. However while this was the case, he was not himself a trustee of the estate. This situation prevailed until the retirement of Bishop Stewart in 1979. After this, the new bishop, Noel Daly, decided that he would take on the role of a trustee himself. In this way, the bishop became both a trustee and also the ‘clergyman of St Kilian’ for the first time in the history of the trust. On the retirement of Bishop Daly in 2000, the incoming Bishop Grech decided to continue with this arrangement.

 There is a feeling among the Catholic population that it is inappropriate for a bishop to be a trustee of the estate. Since the business of the trust is entirely commercial in nature, it seems anomalous for a bishop to be involved in such an enterprise.[14] There is also the possibility of a conflict of interest or at least the perception of a conflict of interest occurring between this role and the pastoral role of the bishop of the diocese.

 The situation has changed very recently due to the sudden death of Bishop Grech in December 2010 and it remains to be seen what approach an incoming bishop will take to this matter.

 

 Church use of funds from the Backhaus Estate

 The current annual income which the trust distributes to the church is now in excess of $850,000. Such an amount is indicative of the estate’s importance to the finances of the Bendigo church.
This is an area that has also been surrounded by mystery and secrecy. Some comments were given in the book on this topic. In recent times, a Diocesan Finance Council has been established to satisfy a long-existing requirement of canon law that such a committee be brought into existence. So far, insufficient time has elapsed to see any consequences of the formation of this committee.

 Clarification of terminology

 In Part 6 of the book, the ‘clergyman of St Kilian’ is sometimes referred to as the beneficiary of the will and estate of Dr Backhaus. However in a legal sense, the beneficiary is the Catholic church in Bendigo and the clergyman is merely the person to whom the income is paid. In most cases, the distinction is rather academic.