Guidance on Using Charitable Funds for Volunteer Firefighters

The Court advised on the proper use of charitable funds raised for volunteer firefighters affected by bushfires, allowing the funds to be used for supporting firefighters and their families, providing mental and physical health training, and covering course fees for skill improvement.

Supreme Court New South Wales

Medium Neutral Citation: In the matter of the New South Wales [NAME] Service & [NAME]; Application of [NAME] & Or [2020] NSWSC 604 Hearing dates: 18 May 2020 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Equity Before: Slattery J Decision: Judicial advice given on four questions asked, see [83]. The plaintiffs and the Attorneys' costs of this application paid out of the Fund on the indemnity basis. Catchwords: [NAME] advice – Trustee Act 1925, s 63 – The proper interpretation of the [NAME] and [NAME] – The proper limits of the application of donated monies in accordance with the [NAME] and [NAME] – whether such monies can be donated to other charities or [NAME] fire services – whether such monies can be used to set up or contribute to a fund to support [NAME], or the families of [NAME] killed [NAME] – whether such monies can be donated to provide physical health training and resources, mental health training and resources or trauma counselling services to volunteer [NAME], as defined in [NAME] Act, s 8, in connection with performing the functions of the [NAME] and [NAME] – whether such monies can be used to set up or contribute towards meeting the costs for [NAME] firefighter volunteers to attend and complete courses that improve skills related to volunteer-based fire and emergency services activities. Legislation Cited: Charitable Trusts Act 1993 Charities Act 2013 (Cth) Income Tax Assessment Act 1997 (Cth) [NAME] Act 1997, Part 2, Division 3A, Division 5, ss 8, 8(1), 8(2), 8(3), 9, 9(4), 9(4)(b), 21, 22, 22A, 23, 24, 25, 26, 39, 43 Trustee Act 1925, ss 63, 63(2) Cases Cited: Attorney –General (Qld); [NAME] v [NAME] (1977) 136 CLR 353 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Byrnes v Kendle (2011) 243 CLR 253 [COMPANY] v Attorney General for the State of NSW [2010] NSWSC 566 Macedonian Orthodox Community Church of [COMPANY] v [NAME] of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 [2008] HCA 42 Texts Cited: [NAME] and [NAME], Jacobs' Law of Trusts in Australia (LexisNexis, 8th ed, 2016) [NAME], "Variation of Trusts in New South Wales" [1990] 13(2) University of New South Wales Law Journal 359 Category: Procedural and other rulings Parties: First plaintiff: [redacted] plaintiff: [redacted] plaintiff: [redacted] plaintiff: [redacted] plaintiff: [redacted] plaintiff: [redacted] Counsel: [redacted] For Attorney General of NSW: [NAME]

Solicitors: [redacted] For Attorney General of NSW: [NAME]) File Number(s): 2020/114285 Publication restriction: No

Judgment

The Issues for Judicial Advice 1. The plaintiffs are [NAME] ("[NAME]") of a charitable trust, the [NAME] & [NAME] ("the [NAME]"), which was constituted by a trust deed of 10 April 2012 ("the [COMPANY]"). [NAME] seek the Court's advice or direction under Trustee Act 1925, s 63 as to the proper interpretation of the [COMPANY]. Trustee Act, s 63 empowers the Court through a summary procedure to advise [NAME] "on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument". They seek the Court's advice in the following circumstances.

2. Over the spring and summer of 2019 – 2020, Australia suffered a series of catastrophic bushfires. Millions of hectares of bushland and agricultural land were burned out. Thousands of homes and properties were destroyed. Countless animals were killed or [NAME]. Bushfires tragically killed 33 people throughout Australia, 25 of them in New South Wales. The national death toll included 14 [NAME]; six of them from New South Wales. Many others were [NAME] physically and psychologically. Within this State, [NAME] was organised under the command of the [NAME], a body constituted under the [NAME] Act 1997.

3. One public spirited New South Wales citizen, [NAME], responded to this unfolding crisis by launching a charitable crowdfunding appeal in early January 2020. She entitled the public appeal, "Please help anyway you can. This is terrifying." Her appeal employed [NAME], an internet payment service. [NAME] nominated, and [NAME] published, the [NAME] as the proposed recipient of the appeal donations.

4. Donations with accompanying messages of empathy and support flooded in from all around the world. Her appeal was a spectacular success. She raised $51 million. In conformity with [NAME]'s nomination, [NAME] remitted this money to the [NAME]. 5. [NAME] are now considering questions about the proper limits on their application of the [NAME] in accordance with the [COMPANY]. These questions are raised for [NAME] from several sources. These include messages transmitted with some of the donations and statements made by [NAME] herself about the proper objects of her fundraising success. 6. [NAME] have submitted to the Court that they wish to honour the intentions and beliefs of [NAME] and the [NAME] who responded to the appeal concerning what should be done with the donated money. But they wish to do so consistently with the Trust Deed and in accordance with applicable law. This has prompted them now to seek the Court's advice as to whether or not they can properly apply the [NAME] to some of the objects that have been indicated. 7. [ADDRESS]'s jurisdiction under Trustee Act, s 63 is protective. If a trustee acts in accordance with the Court's "opinion, advice or direction" upon an application such as this, the trustee is "deemed to have discharged the trustee's duty as trustee in the subject matter of the application": Trustee Act, s 63(2). Provided a trustee's application is not misleading and the trustee acts in accordance with the Court's advice, the trustee is protected from complaint. The advice the Court gives is private advice to the trustee. But unless there is a special reason for confidentiality, in the proper administration of justice, the advice is given in open court. In Trustee Act, s 63 proceedings a trustee asks the Court questions, which the Court answers. 8. [NAME] raise four questions about the interpretation of the [COMPANY]. In accordance with accepted procedure, they have submitted a statement of facts outlining the relevant circumstances to the Court. These reasons draw upon this statement of facts in more detail below. 9. [NAME] ask the Court whether, in these circumstances outlined in their statement of facts, they are justified, in the proper performance of their powers and duties as [NAME], in applying the monies in the [NAME] to any of the following four possible objects: 1. paying money to other charities or [NAME] fire services, whether in New South Wales or other Australian states or territories, to assist in providing relief to persons and animals affected by bushfires; 2. setting up or contributing to a fund to support [NAME], or the families of [NAME] killed [NAME]; 3. providing: 1. physical health training and resources, 2. mental health training and resources, or 3. trauma counselling services, 4. to volunteer [NAME] (as defined in [NAME] Act, s 8), who require them in connection with performing the functions of the New South Wales [NAME] Service, as defined by [NAME] Act, s 9; or 1. setting up or contributing to a fund to meet the costs for volunteer [NAME], as defined in [NAME] Act, s 8, to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the [NAME], established under the [NAME] Act. 1. [ADDRESS]'s answers to these four questions are set out at the end of this judgment.

2. The [NAME] is an express charitable trust. The Crown, as parens patriae, has a duty to protect all property committed to charitable purposes. The Attorney General of New South Wales has intervened in these proceedings on behalf of the Crown, fulfilling the Attorney General's traditional role to represent the object of this charity. The Attorney General has been joined as a defendant and is the only other party in the proceedings.

3. The questions raised in [NAME]' Summons dated 16 April 2020, were the subject of submissions in Court on 11 May. [NAME] SC and [NAME] of counsel appeared for [NAME], instructed by [NAME], of [NAME]. [NAME] of counsel appeared for the Attorney General of New South Wales, instructed by [NAME], the Crown Solicitor.

4. These reasons now outline the relevant circumstances taken from the statement of facts presented to the Court. Those circumstances include more detail about [NAME]'s appeal and the structure of the crowdfunding payment mechanism it used. This is then followed by the terms of the [COMPANY] and the statutory context created by the [NAME] Act, which is relevant to the Court's consideration of the terms of the [COMPANY]. Then the Court addresses the four questions asked.

[NAME]'s Bushfire Appeal 1. [NAME] established her public fundraising appeal on Facebook, a social media platform, on about 3 January 2020. Her initiative was spontaneous. [NAME], nor the New South Wales [NAME] Service contacted her before she acted. But her appeal clearly identified the [NAME] as its object.

2. The headline title of her appeal, "Please help anyway you can. This is terrifying" was followed by the descriptive subtitle, "Fundraiser for the Trustee for the [NAME] & [NAME]". Then under the heading "About" the appeal's title page said: "Want to Join me in supporting a good cause? I'm raising money for The Trustee for [NAME] & [NAME] and your contribution will make an impact, whether you donate a lot or a little. Anything helps. Thank you for your support".

1. To facilitate their donations, [NAME]'s appeal page directed potential [NAME] to an electronic payment system controlled by [NAME], the [NAME] ("the [NAME]"). [NAME] were given some information about the operation of the [NAME] as follows: "Donations are made to the [NAME] (ABN 65 106 950 945) and granted to the charity within 90 days, subject to [NAME] policies. Learn more." 1. [NAME] could then click on the "Learn More" option, which gave them access to additional information about the [NAME]. The company [NAME] [COMPANY] ("the [NAME]") is the trustee of the [NAME]. In essence it operates as a facility by which charitable donations can be made to other charities. The constitutive documents of the [NAME] are important for present analysis and are considered in more detail below. 2. [ADDRESS] has been given a selection of the many messages that were generated on [NAME]'s Facebook fundraising page during the appeal, mainly from [NAME] but also some from potential [NAME]. The selection was directed at extracting messages posted to the page which indicated that a [NAME] directed, expected, hoped or was concerned that a donation to the appeal would be applied to another charity or recipient that was not within the objects of the [NAME]. The aim of this exercise was to survey the range of [NAME] that might conflict with limits in the [COMPANY].

3. Under the direction of [NAME], an Associate at [NAME], a paralegal at the firm, and [NAME], a graduate lawyer, undertook this exercise soon after the appeal was launched. The sample of posts they selected vividly illustrate the sentiments and range of hopes and expectations of [NAME]. The sample of posts became Annexure I to the statement of facts. For convenience, this sample of posts has also been reproduced as an annexure to this judgment. 4. [NAME] submit that the questions which they have asked the Court isolate the issues about what is permitted under the [COMPANY] raised by the [NAME]' intentions expressed in these posts. Having surveyed these posts, and the questions asked, in the Court's view they appear to achieve this objective.

5. Before considering the terms of the [COMPANY], and its statutory context in the [NAME] Act, these reasons address the mechanism by which the donated money from the appeal was paid to the [NAME], the [NAME].

The [NAME] and its Operating Agreements 1. The [NAME] is itself an express charitable trust, constituted by a trust deed dated 3 July 2018 ("the [NAME]"). The [NAME] redirects donations made to it, to the charity indicated by the [NAME]. The terms on which it does this are set out in the [NAME] and the [NAME]'s [NAME] of Service.

2. The [NAME] clause 4.1(a) provides for the application of the [NAME] as follows: "The [[NAME]] Trustee must pay or apply the Trust Fund solely for the purpose of providing money, property or benefits to or for Eligible Entities or the establishment of Eligible Entities as the Trustee decides."

1. The [NAME], clause 2.1 defines "Eligible Entity" as: "a fund, authority or institution: 1. which is Charitable or would be a 'charity' within the meaning of the Charities Act 2013 (Cth) if it were not a 'government entity' as defined in that Act; and 2. gifts to which are deductible under item 1 of the table in section 30-15 of the [Income Tax Assessment Act 1997]"

1. The [NAME] qualifies as an "Eligible Entity" in the [NAME]. The [NAME] is a charity within the meaning of the Charities Act 2013 (Cth), s 5. Moreover, [NAME] have submitted and the Court accepts that the [NAME] satisfies the requirements relating to a "fire and emergency services" recipient in section 30-102 of the Income Tax Assessment Act 1997 (Cth) and gifts to it are deductible under item 1 of the table in section 30-15 of that Act.

2. The [NAME], clause 15.2 further provides that: "Except where there is an express contrary provision in this deed, every discretion given to the Trustee is absolute and uncontrolled and every power given to it is exercisable at its absolute and uncontrolled discretion."

1. When making a payment to the [NAME], all [NAME] to [NAME]'s appeal agreed through a "clickwrap" agreement that they would be bound by the [NAME]'s [NAME] of Service ("the [NAME] of Service").

2. The [NAME] of Service, clauses 3 to 6, require that [NAME] to the [NAME] recommend a corresponding [NAME] from/by the [NAME] to an Eligible Charity as defined, but the [NAME] is not bound by a [NAME]'s recommendation and it retains exclusive legal control over donations (subject of course to the law of charity). These clauses relevantly provide as follows: "3. By donating to [NAME], you understand and agree that your donation is made to [NAME], a Public Ancillary Fund (ABN 65 106 950 946). [NAME] receives contributions and disburses those contributions to charities in the form of grants. [NAME] will only [NAME] donations to organisations that are an Eligible Charity. "Eligible Charities" includes the funds, authorities or institutions that: … [The [NAME] of Service here set out the eligible Charities requirements, which the [NAME] satisfies]

4) When you donate to [NAME] you will recommend that [NAME] make a corresponding [NAME] to an Eligible Charity in the amount of your donation. 5) [NAME] will make every effort to [NAME] the funds you donate to your recommended Eligible Charity. You acknowledge that delivery is subject to [NAME]'s Donation Delivery Policy. You understand that [NAME], as required by law, retains exclusive legal control over all donations and may redirect funds to a similar Eligible Charity If it is unable to follow your recommendation.

6) As required by law, in order for your donation to [NAME] to be considered tax-deductible; it must, among other requirements, be a genuine gift to [NAME]. Refunds may only be granted in exceptional circumstances in accordance with our Refund Policy, and only when the funds have not already been re-granted by [NAME] to an Eligible Charity." 1. [NAME] must enter into the [NAME] of Service before donating. Despite the charitable legal environment of the [NAME] of Service, they represent a binding agreement between the [NAME] and the [NAME], with the latter at least promising to provide payment services in exchange for the donation. [NAME]'s subsequent act of making a donation to the [NAME], through the Facebook page displaying the [NAME] as the nominated charity for [NAME]'s appeal, constitutes a "recommendation" of the [NAME] within the meaning of that term in the [NAME] of Service, clauses 4 and 5.

2. By late January 2020, donations totalling approximately $50 million had been made to the [NAME] in response to [NAME]'s appeal. The [NAME] paid this money to the [NAME].

3. Payments from the [NAME] to the [NAME] are governed by a Charity User Agreement made between [NAME] of the two funds. In the text of the Charity User Agreement "we" means the [NAME] and "you" means [NAME] of the [COMPANY]. The Charity User Agreement, clause 1 defines the nature of the relationship between Eligible Charities, such as the [NAME], and the [NAME] in the following way: "1. Our relationship with you 1a We solicit donations on our own behalf on our websites, subdomains, and other websites or mobile applications operated by our partners, including the website located at www.[NAME].com/au/fundraiser/hub (the "Services"). We accept donations from [NAME], which we then [NAME] to the Eligible Charity recommended by the [NAME] pursuant to our Charity Certification Policy and Donation Delivery Policy. Alldonations made by [NAME] are made to [NAME]. We also issue receipts to [NAME] for each donation they make to allow [NAME] to deduct their donations as permitted by applicable tax law."

1. The Charity User Agreement, clause 4, mirrors the [NAME] of Service and preserves as between an Eligible Charity and the [NAME] the exclusive legal control over all donations received from [NAME]. Clause 4 provides: "4 Receiving Donations 4b You acknowledge that we make no promise that you will benefit from any donations as a result of your status as an Eligible Charity. 4d [NAME] make their donations to [NAME] and not to Eligible Charities. [NAME] issues all legally-required tax receipts to [NAME]. We, in turn, make charitable distributions to qualifying Eligible Charities that are recommended by [NAME]. As a result, any donations your organisation receives pursuant to this Agreement are made by [NAME]. [NAME] retains exclusive legal control over all donations received from [NAME], and [NAME] exercises its discretion in making grants to you. 4f We reserve the right not to distribute a donation to you (even if you are recommended by a [NAME] for a particular donation), if, in our sole discretion and determination: i. we are unable to deliver it (e.g., if the [NAME] account and/or contact information in your charity profile is invalid); ii. you are in breach of this Agreement; iii. doing so would cause us to not comply with applicable laws; iv. doing so would bring us into disrepute; or v. you otherwise cease to qualify as an Eligible Charity. In any such case, we reserve the right to redirect any donation to another Eligible Charity, or to use or dispense with the donation in any manner consistent with our policies and charitable purposes. 4g You agree to promptly return to us the full amount of any donation you receive from us if, when you receive it: i. this Agreement has been terminated; ii. you are not an Eligible Charity; or iii. we have notified you that a [NAME] is due a donation refund. We may, in our sole discretion, elect to offset a future donation rather than requesting that you return to us an amount that we have already donated to you."

1. The Charity User Agreement, clause 7(a) sets out the following warranties and disclaimers which are principally designed to ensure that the arrangements between an Eligible Charity and the [NAME] conform with the law that applies to charities: "7a You represent and warrant that, at all times: i. you are an Eligible Charity. You will promptly notify [NAME] if you cease to be an Eligible Charity; ii. you will utilise donations received from [NAME] in a manner that is consistent with such status; iii. you will use our Services in compliance with all applicable laws, rules and regulations, including any requirements governing charitable status and solicitation of charitable donations; iv. all information provided by you is true and accurate; v. you have the right to provide all information provided by you, the right to authorise us to use this information as contemplated herein, and the right to enter into this Agreement on behalf of your organisation; vi. you have the right to [NAME] the licences to [NAME] hereunder and our use, as contemplated by this Agreement, of materials or rights licenced hereunder, will not infringe the intellectual property rights or similar rights of any third party; vii. you will not disparage [NAME], [COMPANY] and its affiliates, any other Eligible Charity or any partner or sponsor of [NAME] identified within the [NAME] website; and viii. you will comply with the terms and conditions of this Agreement and any terms of use or other agreements you may have with [NAME] and/or any partners of [NAME]."

1. Once the [NAME] appeal monies were transferred to the [NAME] they were held subject to the [COMPANY].

The [NAME] and the [COMPANY]

1. The [NAME] is an express charitable trust and a charity within the meaning of the Charities Act, s 5. It is a registered charitable trust with the Australian Charities and Not-for-profits Commission.

2. The [COMPANY] established the [NAME]. Much of the language of the the [COMPANY] assumes familiarity with or borrows terms that are used in the [NAME] Act.

3. Recital B of the [COMPANY] records that the [NAME] "will be established and operated solely for the purpose of supporting the volunteer-based fire and emergency services activities of the [NAME]". Clause 1.1 defines "[NAME]" as "all [NAME] establish from time to time under the [NAME] Act 1997 (NSW) as amended."

4. The [COMPANY], clauses 2.1 and 2.2, establish and name the [COMPANY]. Clause 2.3 sets out the purposes of the [NAME]. This clause is the central provision to be construed in this judicial advice. It provides as follows: "2.3 Purpose of Trust The purpose of the Trust is to pay or apply the income from the Trust Fund, and such parts of the capital from the Trust Fund as [NAME] at any time and from time to time think fit as follows: (a) to or for the [NAME] in order to enable or assist them to meet the costs of purchasing and maintaining fire-fighting equipment and facilities, providing training and resources and/or to otherwise meet the administrative expenses of the [NAME] which are associated with their volunteer-based fire and emergency service activities; (b) for Authorised Investments which are consistent with carrying out the purpose in paragraph (a) above; (c) to meet the reasonable costs of the current and continuing operation and management of the Trust."

1. The [COMPANY], clauses 2.4 provides that in exercising the discretion under clause 2.3 [NAME] may have regard to recommendations of an Executive Committee established under the [COMPANY] and any public rulings or guidelines issued by the Australian Taxation Office concerning public funds endorsed as Deductible Gift Recipients.

2. The purpose of the [NAME] is achieved through the maintenance of a "Gift Fund", according to clause 3 of the [COMPANY]. Clause 3.3 places limits on the use of the Gift Fund: "3.3 Limits on use of [NAME] must use the following only for the Purpose of the Trust: (a) all gifts and contributions made to the Gift Fund; (b) any money or Property received by [NAME] in connection with those gifts and contributions. No payments from or distributions of the Gift Fund may be made directly or indirectly by [NAME] at any time otherwise than in accordance with this Deed."

1. The purpose of the [NAME], particularly the purpose of "providing training and resources" is to be construed by reference to the statute, the [NAME] Act, that creates the command and operational structure of the [NAME] that the [NAME] supports.

The [NAME] Act 1. [NAME] Act, s 8 establishes the [NAME] ("the RFS") and aspects of its command structure. Sections 8(1) and 8(2) provide as follows: "[NAME] (1) There is established by this Act the [NAME]. (2) The Service comprises the following members: (a) the Commissioner and other staff of the Service, (b) (Repealed) (c) volunteer [NAME] fire fighters."

1. Apart from the Commissioner and other permanent staff, s 8(3) makes clear that the RFS is a volunteer service. The "volunteer [NAME] fire fighters" referred to in s 8(2) are defined in s 8(3) in the following way: "volunteer [NAME] fire fighters means: (a) officers and other members of [NAME] fire [NAME], and (b) any person other than a member of a [NAME] who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a [NAME]."

1. By this provision, the act widens "volunteer [NAME]" to include persons who are not an officer or member of a [NAME] but who informally volunteers and "engages in fighting…a fire" under the "authority and supervision" of an officer of a brigade. [NAME] Act, s 9 provides for the functions of the Service of the RFS. [NAME] Act provides: "9 Functions of Service (1) The [NAME] has the following functions: (a) to provide [NAME] fire services for New South Wales, (b) to issue public warnings about bush fires and bush fire threats in the State for the purpose of protecting life and property, (c) to provide advisory services (whether within or outside the State) relating to fire fighting and other matters with respect to which it has expertise, (d) as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation, (e) to carry out, by accredited [NAME], rescue operations allocated by the State Rescue Board, (f) to assist the State Emergency Operations Controller to carry out emergency management functions relating to the prevention of, preparation for and response to, and to assist the State Emergency Recovery Controller to carry out emergency management functions relating to the recovery from, emergencies in accordance with the State Emergency and Rescue Management Act 1989, (g) to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the State Emergency Service or the Ambulance Service of NSW in dealing with any incident or emergency, (h) to maintain effective liaison with all emergency services organisations, (i) to carry out such other functions as may be assigned to it by or under this or any other Act, or by the State Emergency Operations Controller or the Minister, (j) to do anything necessary for, or incidental to, the exercise of its functions. (2) The functions of the Service are to be exercised in accordance with the State Emergency and Rescue Management Act 1989 and, in particular, with the requirements under the State Emergency Management Plan or any state of emergency under that Act. (3) The Service is to have regard to the principles of ecologically sustainable development described in section 6 (2) of the Protection of the Environment Administration Act 1991 in carrying out any function that affects the environment. (4) In this section: [NAME] fire services includes the following: (a) services for the prevention, mitigation and suppression of fires in [NAME] fire districts, (b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in [NAME] fire districts, (b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in [NAME] fire districts, (c) the provision of services referred to in paragraphs (a)-(b1) throughout the State in accordance with Part 3, (d) any other service prescribed by the regulations."

1. The Commissioner is responsible for setting standards for the RFS by issuing written policy statements to members of the RFS "with respect to the procedures to be followed in connection with the operation, management control of the Service": [NAME] Act, s 13 "service standards". The Commissioner issues such policy statements from time to time.

2. As earlier indicated, the [COMPANY] (clause 1.1) defines "[NAME]" as "[NAME] established from time to time under the [NAME] Act". [NAME] Act, s 15 provides for the formation of [NAME] in a manner consistent with the [COMPANY]. Section 15 provides: "15 Formation of [NAME] fire [NAME] (1) A local authority may form one or more [NAME] fire [NAME] for any [NAME] fire district constituted for its area or part of its area. (2) Two or more local authorities may jointly form a [NAME] for a [NAME] fire district constituted for their areas. (3) A [NAME] may be formed on the initiative of the local authority or local authorities concerned or on the request of any interested person. (4) The Commissioner may form a [NAME] for a [NAME] fire district if any local authority requested to form a [NAME] for that district refuses or fails to do so within the period prescribed by the regulations after being requested to do so by the Commissioner."

1. A [NAME] that is established under [NAME] Act will fall within the object of the [NAME], "to or for the [NAME]…" in clause 2.3(a) of the [COMPANY]. Such a [NAME] also forms part of the RFS. A [NAME] so established will have the various functions set out in [NAME] Act, s 9. Section 8(3) implies that [NAME] fire [NAME] consist of "officers and other members" who, according to s 8(3) are "volunteer [NAME] fire fighters". But they all form part of the [NAME]: s 8(2).

2. The [NAME] Act provides for aspects of the command structure and organisation of [NAME]. The body of persons forming a [NAME] determine the territory in which the brigade operates and appoints officers selected in accordance with the "service standards" that are issued by the Commissioner: s 18. The body of persons forming the [NAME] are to keep a register of members in accordance with the service standards. An officer of a [NAME] or a group of [NAME] fire [NAME] has functions conferred on the officer under the [NAME] Act or any other legislation: s 21.

3. The [NAME] Act confers powers on officers "for the purposes of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire incident or other emergency" to exercise a range of functions and powers that the officer considers necessary for these purposes: s 22. The [NAME] Act confers powers on officers of a [NAME] to take steps that would otherwise be tortious: to remove persons or vehicles near a fire incident or other emergency (s 22A); to enter premises (s 23); to close streets and public places (s 24); to make premises safe (s 25); and to use water and works (s 26). An officer of the RFS is entitled to use reasonable force (s 31) and has certain powers to enter premises.

4. The Commissioner may authorise officers to enter land to investigate fires: [NAME] Act, Part 2, Division 3A. [NAME] Act, Part 2, Division 5 provides for the command structure of the RFS. Any function conferred on the Commissioner may be exercised by any officer or member of a [NAME] or group of [NAME] fire [NAME] authorised for this purpose by the Commissioner: s 39. The [NAME] Act recognises that interstate fire [NAME] may assist at fires in the following terms: "43 Interstate assistance at fires (1) A person who is a member of an interstate fire brigade and is present at a fire within a [NAME] fire district for the purpose of mitigating or suppressing that fire must: (a) obey any orders given to the person by the officer in charge at the fire, and (b) place any gear or equipment in the person's charge at the disposal of the officer in charge at the fire. (2) [NAME] there is no officer in charge at the fire, the member of the interstate fire brigade who has the charge of the members of that brigade present at the fire is, for the purposes of this Act, to be considered the officer in charge at the fire. (3) A member of an interstate fire brigade who is present at a fire within a [NAME] fire district for the purpose of mitigating or suppressing that fire is taken to have and may exercise all the functions that, if the fire were in the area of a [NAME], the officer in charge of that [NAME] would have and be capable of exercising and performing. (4) In this section: interstate fire brigade means a fire brigade (by whatever name called) established under a law of any place outside New South Wales."

Trustee Act, s 63 1. The power conferred by Trustee Act, s 63 is exercisable in relation to a charitable trust. An example of this application is the recent decision of the High Court on Trustee Act, s 63, Macedonian Orthodox Community Church of [COMPANY] v [NAME] of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 ("[NAME]").

2. This is an apt case for the Court to give judicial advice. [NAME] are seeking the Court's direction or advice as to the administration of money controlled by the [NAME] in circumstances in which a large amount of money has been donated to it. There is some public controversy as to the purposes for which that money may be spent. That controversy raises questions in relation to the administration of the trust property or the interpretation of the trust instrument. [ADDRESS]'s jurisdiction is enlivened to give advice or direction under s 63: see [NAME] at [58].

3. And the permitted purposes of the [NAME] are those identified in the [COMPANY]. Questions arise here "respecting the interpretation of the trust instrument" within the meaning of s 63(1): see [NAME] at [57]. Those questions involve some complexity of construction in light of the use of terms in the RFS Deed which are apparently referrable to the legislative scheme of the [NAME] Act.

4. The statement of facts indicates that there is no possibility of the [NAME] being in surplus with respect to its purposes. None of the conditions necessary for a cy-pres scheme are satisfied in this case: see [NAME] and [NAME], Jacobs' Law of Trusts in Australia (LexisNexis, 8th ed, 2016) at 182 [10-70]. Nor has it been submitted on the application that this is a case where a general scheme is required because the charitable purpose is not sufficiently defined or because the designated objects or machinery do not exist. 5. [ADDRESS]'s judicial advice under Trustee Act, s 63 does not preclude an [NAME] from later bringing suit and contending that he or she made a donation impressed with a charitable purpose other than that provided by the terms of the [NAME] or the [NAME]. But any such suit would primarily be brought against the [NAME] but may also involve the [NAME]. Such a case would have to be determined on its individual merits. The present judicial advice does not prejudice the rights of any such potential suitor.

Two Trusts – the [NAME] and the [NAME] 1. [NAME], counsel for [NAME] has submitted, and the Court agrees, that the donated money became, after its receipt by the [NAME], the subject of a charitable trust which was to be administered according to the [NAME]. After the money was paid from the [NAME], it became the subject of a separate charitable trust, the [NAME], according to the [COMPANY].

2. Here members of the public made donations in response to a public appeal. As the Attorney General submits, this case is akin to Attorney –General (Qld); [NAME] v [NAME] (1977) 136 CLR 353 and [COMPANY] v Attorney General for the State of NSW [2010] NSWSC 566 ("Eurella"). A key issue in such cases is whether or not the donations were made absolutely to the institution that received them or were made impressed with a trust for a particular charitable purpose. The terms of the appeal, to which the [NAME] were responding, may be good evidence of the [NAME]' intentions.

3. Here the result is clear. Each of the [NAME] made a payment to the [NAME] by way of an internet facility with published terms that stated the effect of the donation. This is so despite what the [NAME] may have hoped or intended might be done with the money. The [NAME] should be taken to have intended to make the payment to the [NAME] and should be taken to have intended that it be received according to the published terms. One of those terms was that an indication of the intended destination of the funds was merely a recommendation. The statement of facts does not suggest any [NAME] made a payment to the [NAME] by any other method.

4. The [NAME] paid the donated money to the [NAME]. The effect of, the [NAME]'s payment of money was to donate it to the [NAME] on the terms in the [COMPANY].

5. The various public and perhaps private statements made by [NAME] or any of the [NAME] do not bind [NAME]' application of the funds that they have received from the [NAME]. The terms of the [COMPANY] that establishes the [NAME] binds [NAME].

6. Any funds received by [NAME] in that capacity must be applied only for the purposes set out in the [COMPANY]. Any other application of the funds would be a breach of trust. [ADDRESS] is much assisted by the analysis of the [COMPANY] by counsel which have dealt with the various suggested purposes to which the [NAME] might be applied. These reasons now deal with those purposes in relation to the [COMPANY].

7. As has been submitted on behalf of [NAME], the terms of the Charity User Agreement supports the conclusion that the payments of donated money from the [NAME] were intended to be the subject of a second trust in the form of the [NAME]. Payments from the [NAME] are "charitable distributions to qualifying Eligible Charities that are recommended by [NAME]": Charity User Agreement, clause 4(d). And the recipient of those distributions has represented and warranted that the donations received from the [NAME] will be utilised in a manner that is consistent with the recipient's status as an Eligible Charity: Charity User Agreement, clause 7(a)(ii).

8. The qualifying Eligible Charity that received the donated money here was the [NAME]. It does not matter whether the trustee of the [NAME] knew of or understood the terms of the [COMPANY]. The subject matter of the trust is the money paid from the [NAME] to the [NAME]. The object of the trust is the charitable purpose stated in clause 2.3 of the trust deed for the [NAME]. These reasons now deal with issues that arise from consideration of clause 2.3.

(1) Giving the Donated Money to Other Charities, [NAME] or to Animals 1. [ADDRESS] advises [NAME] of the [NAME] that they cannot use the donated money to give to other charities, or to donate interstate, or to help people or animals affected by bushfires.

2. The uses to which [NAME] can put the donated money are those specified in the [COMPANY], clause 2.3. And clause 3.3 prohibits payments being made from the [NAME] otherwise than in accordance with the [COMPANY] (which includes the purpose prescribed by clause 2.3).

3. As to donations to other charities for bushfire related purposes, such a payment would not be a payment "to or for [NAME]" established under the [NAME] Act. Nor is it an "Authorised Investment" under the [COMPANY]. Such a donation cannot be characterised as an "administrative" cost of the [NAME]. A donation to another charity would, as [NAME] have submitted, be ultra vires to the purpose of the [NAME] and a breach of trust.

4. As to animals affected by bushfires, nothing in the [COMPANY], clause 2.3(a) would permit such a payment. Clause 2.3(a) permits payments "to or for the [NAME]" and the payment is limited to "enable or assist them" to meet the costs of various stated objectives. None of those objectives, "purchasing and maintaining [NAME] equipment and facilities", or "providing training and resources" or "meet[ing] the administrative expenses of the [NAME]" includes giving assistance to animals affected by bushfires. The words cannot be made to do such work. And neither [NAME] nor the Attorney General submit that they can.

5. As to the making of payments for interstate [NAME] fire services, the words of clause 2.3(a) are equally restrictive. The "[NAME]" is a reference to [NAME] established under the [NAME] Act, which applies to [NAME] established or operating within this State: [NAME] Act, s 9(1)(a). It would not be a permissible application of trust funds for payments to be made to [NAME] fire [NAME] in other States or Territories of Australia.

6. There is an exception to this that arises under [NAME] Act, s 43. Under that section an "interstate fire brigade" comes under the command of an officer in charge at the fire: s 43(1)(a) and is integrated in the command structure in that manner. When the interstate fire [NAME] are integrated into the command structure of the [NAME], it would be permissible for their administrative expenses to be met under clause 2.3(a).

7. As to using the fund to ameliorate the effects of fires upon people who are not members of the [NAME], in the Court's opinion that too cannot be justified on the words of clause 2.3(a). Firstly, the payments must be "to enable or assist" the [NAME] to meet the specified costs of the various objectives. One would not characterise payments to members of the wider community affected by bushfires as having the necessary association with the [NAME].

(2) A [NAME] of [NAME] or Killed in Service 1. [NAME] are considering setting up or contributing to a fund to support [NAME] or the families of [NAME] killed [NAME]. This proposed application of the [NAME] requires wider consideration of the [COMPANY].

2. The language of clause 2.3 itself and the defined functions of "[NAME]" under the [NAME] Act create their own limits on what payments [NAME] can make in this direction. [NAME] submit, these purposes are generally not directed to, in effect, ameliorating the consequences of fires. To the extent [NAME] identified using the money for the purpose of preventing future fires and resourcing the [NAME], to that end, the purposes are permissible. But purposes which are directed to ameliorating the consequences of the fires, are more problematic.

3. The trust purposes do, importantly, include payments to [NAME] established under the [NAME] Act "to enable or assist them to meet the costs of providing ... resources". In the Court's view, "resources" includes human as well as financial resources and refers to more than physical items such as "fire-fighting equipment and facilities".

4. The "resources" referred to in clause 2.3 of the trust deed for the [NAME] mean those resources that will enable [NAME] to carry out and fulfil the functions of the RFS. They are, according to the [NAME] Act, s 9(1)(a), "to provide [NAME] fire services for New South Wales".

5. The definition of "[NAME] fire services" in s 9(4) of the [NAME] Act includes "the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in [NAME] fire districts": s 9(4)(b). [NAME] can use the donated funds to give to [NAME] to address physical dangers created by the recent fires. 6. [NAME] can use the money consistently with clause 2.3 of the trust deed (and the [NAME] Act, s 9) to pay [NAME] to enable them to meet the costs of providing resources to protect persons from dangers to their safety and health arising from fires in [NAME] fire districts. But as [NAME] have submitted several conditions would apply to this use. First, the payment from the [NAME] must still be to or for [NAME] for "resources", which are to be used by the [NAME]. They may not be paid directly to the persons affected. Second, those resources must be used for "protection of persons from dangers to their safety and health": within [NAME] Act, s 9(4)(b). Third, that danger must "arise from fires". The context of these words "arise from fires" is that the functions of the [NAME] are generally to prevent fires and in [NAME]. [NAME] submit their functions do not include the longer term remediation of the effects of fires. Dangers to safety and health arising from fires may well include the dangers caused by an immediate lack of shelter, food and water. [NAME] could pay money to [NAME] in order for them to purchase and transport food and water to areas and people effected by fires, and to provide temporary accommodation to those who require it as a result of fires as [NAME] have submitted.

7. But each of those is in the immediate aftermath of a fire. The Attorney General submits, in contrast, that the [NAME] Act, s 9(4), will extend the function of the RFS to giving ongoing assistance beyond the immediate aftermath of the fires.

8. The Attorney submits and the Court accepts that a broader view can be taken of providing care for [NAME] and the families of fallen [NAME] beyond the aftermath of fires. Even though it would not come directly within preventing and fighting fires ([NAME] Act, s 4(a)), a fund to support the families of fallen [NAME] would encourage people to volunteer to contribute to preventing and fighting fires and is permissible. In the Court's view this is for two reasons. Clause 2.3 is aimed at supporting [NAME] in "providing…resources". [ADDRESS] has interpreted this as human resources. Clause 2.3(a) itself emphasises that all of the [NAME]'s expenditure is associated with "volunteer based fire and emergency service activities". The existence of a fund to provide longer term compensation for injuries suffered by [NAME], or to support the families of deceased [NAME] is more likely to encourage volunteers. Unlike a service with a more formal command structure such as in the Australian Defence Force, the [NAME] Act recognises this is a volunteer service comprised in large part of "volunteer [NAME]". Expenditure to support the process of volunteering to ensure those human resources are available is permissible.

9. This conclusion is also supported by noting that [NAME] Act, s 9(4)(a) is not confined to the immediate aftermath of fires. Services "for the prevention, mitigation and suppression of fires in [NAME] fire districts" would also authorise expenditure beyond the immediate aftermath of a fire in execution of RFS brigade-related functions.

(3) [NAME] Training and Resources and Trauma Counselling Services 1. [NAME] submit, and the Attorney General puts no submission to the contrary, that payments from the [NAME] to provide volunteer [NAME] with a fund from which physical and mental health training can be provided, together with trauma counselling services is permissible. These purposes come directly within the words "training and resources". To the extent that these services are provided to volunteer [NAME] they fall within the category of "training". To the extent that they are provided after a fire, such as trauma counselling services, they fall within the category of "providing [human] resources" to the [NAME] for purposes compatible with RFS functions. Expenditure to return a firefighter to active duties is permissible under the [COMPANY], as it provides "resources" to the RFS.

2. Dangers to safety and health arising from fires within s 9(4)(b) includes the dangers of trauma caused to [NAME] as a result of fires. The service standards issued under [NAME] Act, s 13 directly address the trauma related consequence of [NAME]. [NAME] could pay [NAME] in order to provide resources to provide that trauma counselling to [NAME] who require it as a result of fires. To do so protects the [NAME] "from a danger to their safety and health arising from the fires."

(4) [NAME]' Attendance at Relevant Skills Courses 1. [NAME] proposed either setting up or contributing to a fund to meet the costs for volunteer [NAME] to attend and complete courses that improve their skills related to the volunteer based fire and emergency services activities of the [NAME]. In the Court's view, the setting up or contribution to such a fund falls within "training" in the [COMPANY], clause 2.3(a) and is permissible.

Conclusions and Orders 1. The questions asked of the Court are set out below. These are followed by the Court's answers: 1. [ADDRESS] gives the following advice to the questions asked. Are the Plaintiffs justified in the proper performance of their powers and duties as [NAME] of the [NAME], in doing any of the following acts with respect to the monies contained in the [NAME] (including the money donated to the fundraising appeal commenced by [NAME] in January 2020 since paid to the [NAME])? The following are the acts in question: 1. paying money to other charities or [NAME] fire services, whether in NSW or the other Australian States and Territories, to assist in providing relief to persons and animals affected by bushfires. Answer: No. 1. setting up or contributing to a fund to support [NAME], or the families of [NAME] killed [NAME]. Answer: Yes. 1. providing; 1. physical health training and resources; 2. mental health training and resources; or 3. trauma counselling services, to volunteer [NAME] as defined in s 8 of the [NAME] Act, who require them in connection with performing the functions of the [NAME], as defined by s 9 of the [NAME] Act. Answer: Yes. 1. setting up or contributing to a fund to meet the costs for volunteer [NAME] (as defined in s 8 of the [NAME] Act) to attend and complete courses that improve skills related to the volunteer-based fire and emergency service activities of the [NAME], as defined in clause 1.1 of the [COMPANY]. Answer: Yes. 1. [ADDRESS] orders that the Plaintiffs' costs and those of the Attorney General be paid out of the [NAME] on the indemnity basis. 1. [NAME] may have intended or hoped that the money they donated would be used for purposes beyond those which the Court has advised are permissible. [NAME]' wish to honour those intentions or hopes the law provides principles that ensure a degree of certainty in the application of trust funds including charitable trust funds and the Court has applied these principles in giving its advice in these reasons.

********** Annexure I (678615, pdf)

Amendments 25 May 2020 - [55] second last l;ine, such "a" case, last line, present "judicial" advice. [67] second last line, made to "do" such work [69] third last line delete "In a command sense" and add "When" the interstate fire [NAME] [82] moved up to [81] position 25 May 2020 - [72] second line, "directions" to "direction" 25 May 2020 - [79] first line, This "conclusion" is also supported 26 May 2020 - [33] numbering in quotation [69] second last line, "[NAME] and it" to "[NAME], it " [70] third line, "to enable or assist the [NAME]" to "to enable or assist" the [NAME] [78] third line, "directly" before "within" [84] third last line, "than ensure" to "that ensure" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2020