Chartered Secretaries Australia Ltd v Attorney General of New South Wales

Judgment 1The plaintiff seeks an order altering the original purposes of a charitable trust and allowing the trust property to be applied cy pres. Leonard Watson Chant, late of Bellevue Hill, Chartered Accountant died on 22 December 1979, and on 27 June 1980 Perpetual Trustee Company Limited obtained probate of his will dated 23 December 1975. He left property of considerable value including a house in Bellevue Hill, a house at Bateau Bay, furniture, effects and investments. He made a number of provisions for his three sisters; these provisions were limited to their lifetimes. His residuary gift set up an investment fund and gave his sisters shares in the income of the fund, with further provision out of their shares for the adopted son of another sister who had predeceased him. Clause 4 of the will created residiary interests; a trust, after the death of the survivor of his sisters: "... to divide the same equally between (a) ... (b) ... (c) ... (d) the Institute of Chartered Secretaries and Administrators (Australian Division) to set up a Trust to pay scholarships tenable overseas for advancement of training in Secretarial and Administrative knowledge to immediate Post-Graduate candidates of the Institute's examination ... (e) ..." 2The first three persons named were charitable institutions and the fifth was the adopted nephew. The entitlement of one of the charitable institutions was dealt with in Perpetual Trustee Company Limited v The Attorney General of New South Wales [2007] NSWSC 1339 (Windeyer J). The issues there considered do not affect the present application. 3The proposal is as follows: "CSA proposes that the charitable purposes be varied such that the Trustee holds, uses, and applie[s] the trust property to pay scholarships for entry: a. into the Trustee's postgraduate courses dealing with applied corporate, public sector and/or not-for-profit sector governance, and b. into any other postgraduate course dealing with applied corporate, public sector and/or not-for-profit sector governance whether in Australia or overseas." There will not be a limitation to persons who have already completed the plaintiff's course, or to persons who have done so in the immediate past, and there will not be a limitation to study overseas. 4The Institute of Chartered Secretaries and Administrators (the Institute) was incorporated by Royal Charter in the United Kingdom on 3 November 1902 and still exists, and at the times of the will and Mr Chant's death had an Australian Division which carried on its operations here. The governing council was located in London and the Australian Division was conducted by members of the Institute with the authority and under general control of the governing council. 5It is unarguably clear that the gift to the Institute was a valid charitable gift. In the plainest way, the trust to pay scholarships for advancement of training in Secretarial and Administrative knowledge is a trust for educational purposes. The validity of the charitable trust was not challenged by Mr Chant's surviving sisters or any other persons (if there were any) entitled to claim an interest on a partial intestacy. I gave consideration to whether the proceedings were well constituted and whether some such interest should be represented and I proceeded with the hearing without requiring further joinder because, in my finding, there is no practical possibility of any challenge of that kind. 6Section 9 of the Charitable Trusts Act 1993 (NSW) has considerably widened the ground on which the Court may act when asked to order a cy pres scheme. Sections 9 and 10 of that Act provide: "9 Extension of the occasions for applying trust property cy pres (1) The circumstances in which the original purposes of a charitable trust can be altered to allow the trust property or any part of it to be applied cy pres include circumstances in which the original purposes, wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust. (2) References in this section to the original purposes of a charitable trust are to be construed, if the application of the trust property or any part of it has been altered or regulated by a scheme or otherwise, as references to the purposes for which the trust property are for the time being applicable. 10 Requirement for general charitable intention of donor (1) This Part does not affect the requirement that trust property can not be applied cy pres unless it is given with a general charitable intention. (2) However, a general charitable intention is to be presumed unless there is evidence to the contrary in the instrument establishing the charitable trust." 7The terms of the gift show that there was a general charitable intention. There is no room for a view that the testator intended only that the gift should be effective if its terms could be followed precisely; its terms are too general for that to be a correct view. The presumption provided for by s 10(2) is not disturbed. 8In the previous law a cy pres scheme could be ordered only where actual compliance had become impossible; Attorney General v Sherborne Grammar School (1854) 18 Beavan 256, 52 ER 101, at 280-281,110-111 (Romilly MR). Impossibility is no longer required. I stated my views on the operation of s 9 in Attorney General for NSW v Fulham & Ors [2002] NSWSC 629 at [12] - [18]. 9The testator was involved in the affairs of the Institute throughout his adult life; in many ways, deeply involved. The records of the Institute contain many indications of his active involvement. He gained first place in the Institute's Australasia examinations of December 1925 and was given the awards "Gold Medalist" and "Certificate of Merit". He was elected an Associate in 1926 and became a Fellow in 1938. He became principal of the L W Chant Tutorial College, which tutored students for the Institute's examinations. He participated actively in affairs of the Institute relating to the examinations which it conducted, and with the dealings of the Australian Division with the London council. He submitted articles for publication in the Institute Journal. He contributed to an examination syllabus, made recommendations for texts, articles and reading lists and for purchase of texts for the library, and was active in many affairs of the Australian Division. He was also a Fellow of the Australian Society of Accountants and a Registered Public Accountant. Training in Secretarial and Administrative knowledge and the circumstances of candidates of the Institute's examinations were subjects on which he was fully informed. 10Although the charitable gift took effect in interest at the death of the testator, no resources were then distributable and the gift did not take effect in possession until 2005 when the last of the testator's sisters died. In the interval there had been changes in the affairs of the Institute. 11The plaintiff is a company limited by guarantee formed in the Australian Capital Territory on 28 April 1986. It has changed its name several times and its present name became effective on 3 July 2000. Under a series of arrangements with the Institute the plaintiff came to conduct the Institute's Australian affairs and in effect to function as the Institute's Australian Division: members of the plaintiff being also members of the Institute. The relationship is now governed by a Delegation Agreement of 27 November 2000 and a Service Agreement of the same date. The plaintiff's constitution shows that the continuation of this relationship is among the plaintiff's objects. 12When the residue of the estate became distributable the plaintiff received from the executor money representing the Institute's share. On 1 March 2011 the plaintiff held $1,045,114.09 on account of the trust in a bank account. I have not embarked on any inquiry or accounting into the assets of the trust. The plaintiff has always treated itself as holding those moneys subject to the trust; and approached the Court in the present proceedings on that basis. By Deed of Retirement and Appointment of New Trustee dated 24 January 2011, registered book 4607 number 799 on 7 March 2011, the Institute retired and the plaintiff accepted appointment as trustee of the trust. In the scheme which the plaintiff puts forward it is expressly provided that the plaintiff is the trustee. Any deficiency in the appointment as new trustee, if there was any, will be cured by the terms of the scheme. 13The terms of the scheme put forward have been the subject of extensive consideration by the representatives of the parties over many months before the hearing. Concerns expressed on behalf of the Attorney General about provisions of earlier drafts have been addressed, leading to modifications which those representing the Attorney General found satisfactory. At the hearing I had the benefit of careful and extensive written and oral submissions by counsel, which I found of great assistance. Largely (and the qualifications were minimal) the parties joined in supporting the adoption of the scheme in the terms now put forward by the plaintiff. However the issues are for me to decide; the application cannot be disposed of by consent and the parties did not ask me to do so. 14The first issue presented by the terms of s 9(1) is whether the original purposes have ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust. It is then for me to consider whether the scheme put forward is an appropriate alteration of the original purposes of the trust. In the years since the testator made his will in 1975 and since he died in 1979 there have been extensive changes in the circumstances of training in Secretarial and Administrative knowledge, and also in the manner and circumstances in which training is conducted by the Institute and the plaintiff as its successor. Corporations law has become much more detailed and regulatory activity has become much more intense. There have been changes and increased complexities in the responsibilities of Chartered Secretaries. Their work includes, as it always did, responsibilities for operational and administrative aspects of company administration, but has come to require more profound understanding of company law and the regulation of corporate affairs, with ability to provide advice to directors on corporate governance, risk management, compliance management, and on dealings with other companies and businesses overseas. The task was never easy, but there are more intense pressures and demands on Chartered Secretaries than was earlier the case. 15The Institute's handbook as revised in May 1971 is in evidence and states what were then the qualifications for membership, the examination syllabus and the educational standard, and the provisions for registration of students, for regulating examinations and for exemptions. These provisions, and particularly the examination syllabus show that the requirements then imposed by the Institute for qualification as a Chartered Secretary were quite exacting; it cannot have been possible to pass the examinations of the Institute, which was a requirement for election as an Associate and in effect for professional qualification, without intense application to study over a period of years, at least two years. The handbook stated (at p 23) the educational standards required for examination candidates and for admission to the Institute. These standards were: "EDUCATIONAL STANDARDS An adequate standard of general education is essential for entry into the secretarial profession: an educational level sufficient to provide not only a basis for progress and success through the examination syllabus, but also for secretarial and administrative responsibilities requiring a high degree of knowledge and intelligence. Accordingly an applicant for registration is required to supply evidence of having attained as a minimum a standard of secondary education deemed appropriate by the Institute. Generally the level of such minimum standard is matriculation or other final attainment in secondary education including English and Mathematics as approved by the Institute or an educational qualification which may include attainments which provide admission to a diploma course administered by a college of advanced education. The Council may approve the registration as a student of a candidate who is at least 23 years of age and who, whilst not having attained such minimum standard of secondary education, shall satisfy the Council that he possesses a requisite educational status. Such status will be considered in conjunction with the applicant's experience and attainments." 16At various points the handbook shows that there were advantages for persons with higher educational qualifications than matriculation. The terms of the examination syllabus show, however, that the contemplation was that the subjects dealt with and examined on would be studies which the candidates first embarked on for the purposes of the examination. The syllabus was not appropriate for persons who already had pursued tertiary studies, but was for the most part appropriate for persons embarking for the first time on acquiring a grasp of the subjects dealt with - Accounting, Part 1, General Principles of Law in Australia, Company Law and Secretarial Practice, Part 1, Economic Policies and Problems, Secretarial Practice (Taxation), Personnel Administration, Financial Management. Other syllabus subjects showed more complexity, but for the most part they were developments or second stages of subjects which appeared earlier in the syllabus. 17At that time the Institute functioned as the examining body for persons wishing to become Associates of the Institute and to be qualified for employment as Chartered Secretaries. Teaching was conducted by institutions such as TAFE colleges, technical schools, private education colleges and universities, and not by the Institute, which provided no lectures or academic material for students. The examination papers were drafted in Australia and sent to London for moderation and printing, and returned to Australia where the examinations were conducted. 18The circumstances of those times provide context in which to see the spirit of the provision made by the testator for scholarships tenable overseas, available only to immediate post-graduate candidates of the Institute's examinations and available only for advancement of Secretarial and Administrative knowledge. There was little that an immediate post-graduate who wished to study further could do but to proceed overseas; the training specifically directed to Secretarial and Administrative knowledge available in Australia had been exhausted. While higher studies with some general relevance to Secretarial and Administrative knowledge could probably have been found, their relation to Secretarial and Administrative knowledge could not have been specific. It is easy to see the circumstances in which the testator contemplated that there would be students who passed the Institute's examinations (as in his own case), had not had other academic training, but had distinguished themselves in their studies with the Institute and had completed those studies at a relatively early age (in his case, 21 years of age) who wished to proceed to higher studies while they were, in the words of the gift, "immediate Post-Graduate candidates". 19The plaintiff operates very differently now to the manner in which the Institute engaged in education and conducted examinations in 1975 and 1979. The plaintiff conducts active tertiary teaching operations in several cities. Candidates for examinations receive lectures which are organised and conducted by the plaintiff itself, and not by other teaching bodies. The plaintiff is now in a position to prescribe the qualifications of lecturers. The course seeks to develop analytical skills and does not concentrate on operations. Emphasis has moved from operational or knowledge-based learning to analytical skills and conceptual thinking. This is reflected in examination methods, which depend rather on open-book examinations than on classical examination papers completed in an examination room in a prescribed period of two or three hours. 20The plaintiff's courses include the Graduate Diploma of Applied Corporate Governance, the Certificate in Governance Practice, the Certificate in Governance and Risk Management and the Certificate in Governance for Not-for-Profits. The qualifications required of a candidate are altogether different from those required in 1975 and 1979. Candidates who embark on studies for the Graduate Diploma of Applied Corporate Governance must hold an Australian Bachelor's degree or a tertiary qualification regarded as its equivalent; they are already graduates of tertiary education. There are no educational prerequisites for the Certificate courses. Mr Jodeikin, who is the plaintiff's Director, Finance and Administration, described it as being a fully accredited higher education provider; and this description is well-justified. The plaintiff was accredited to conduct a Graduate Diploma in Company Secretarial Practice in 1999 by Education Departments in four Australian states, to provide a Graduate Diploma of Applied Corporate Governance in 2003, again by four Australian states, and further accredited in October 2005 as a Higher Education Institution under the Higher Education Act 2001 (NSW). In the plaintiff's case, which I accept, its Graduate Diploma is a post-graduate qualification, additional to the undergraduate qualification needed before embarking on the Diploma course. This is a substantially higher level of qualification than was available in the testator's lifetime. 21In evidence which I accept, Mr Jodeikin said: "The Graduate Diploma of Applied Corporate Governance is a fully accredited course, offering an educational qualification in its own right. It is also the main pathway in Australia to becoming a member of the Institute, in that if a person does not have this qualification, they would be ineligible to become a member of Institute ... [The plaintiff] is still a professional organisation catering for its members, but with the added emphasis of being a fully accredited higher education provider." 22In 1975 and 1979 there were no doubt candidates who turned to study for the Institute's examinations after some years of experience in business, in clerical positions or otherwise; but it is likely that the typical candidate of those years began his studies at twenty years of age or younger, soon after completing secondary schooling and without other intervening studies. Mr Jodeikin's evidence, which I accept, is to the effect that students now typically have an established general career path and are highly qualified prior to commencing studies with the plaintiff. About 31% of the plaintiff's students have qualifications in law such as Bachelors' Degrees or Admission Board qualifications before they enrol. About 50% have Bachelor of Commerce, Business or Accounting degrees, or Master of Business Administration degrees. About 50% of the students are women, which was not the case in earlier years. The average age is about 40. They are well-established, have employment experience and have families or careers. Although most students attend lectures, about 40% study by distance mode, that is, they do not attend classes physically and engage in lectures and tutorials electronically. They have busy lives and job responsibilities. 23Speaking with a measure of generalisation I find, as the plaintiff contends, that it is considerably less likely now than it was in 1975 or 1979 that a candidate completing the plaintiff's examinations would wish, when an immediate post-graduate candidate, to proceed overseas for the advancement of training in Secretarial and Administrative knowledge. The candidates of the present day have already proceeded through two courses of tertiary study and are likely, speaking with generalisation, to be considerably older and more established than the candidates of 1979 and to have strong life circumstances calling them to remain in Australia, to remain with their employers and pursue their careers. My findings suffer as generalisations do, and there must be some who do wish to proceed overseas and do so for further training in Secretarial and Administrative knowledge. It is my finding, however, that they are likely to be proportionately fewer than in earlier years. Those who do wish to embark on further tertiary study are likely to be drawn to studies in economics, business administration, commerce or other subjects not closely related to training in Secretarial and Administrative knowledge. Candidates with Doctoral ambitions would be drawn to wider subjects. Students who have obtained the Graduate Diploma of Applied Corporate Governance are more likely to give any further attention they wish to give to further studies to the plaintiff's professional development and short training courses, to its conferences and symposiums, relatively closely related to the career of a Chartered Secretary. Mr Jodiekin and others in the plaintiff's organisation who deal with students are not aware of any recent inquiries for assistance in overseas post-graduate studies in corporate governance. The absence of such inquiries is of only qualified significance as the plaintiff has not notified students that scholarships are available or taken any steps to call for candidates. If graduating students wished to enter institutions overseas for further study, their lecturers would probably know of it; they would probably be consulted for advice, and for references and recommendations. 24Evidence was tendered of research made on behalf of the plaintiff of post-graduate courses available overseas. The survey was very wide, and of course there are many courses and many academic institutions overseas which have some relationship to Secretarial and Administrative knowledge; or can be shown to have some tincture of such a relationship. The plaintiff put forward considerations adverse to identifying these courses as falling within the terms or within the spirit of the testator's benefaction. A trustee with the duty of deciding applications for scholarships would generally take a rather broad view. A tendency to widen the available fields of study would work against the spirit of the trust, which is unmistakably and strongly directed to enhancing opportunities for training in Secretarial and Administrative knowledge. If the limitations to immediate post-graduates and to overseas studies continue to exist the grant of scholarships within those limitations would not provide a suitable and effective method of using the trust's property. In the circumstances of the present day a scheme which would make scholarships available for candidates for the plaintiff's Graduate Diploma would accord with the spirit of the trust in that it would foster post-graduate studies, although in a different way to that for which the testator provided. 25It has not become impossible to administer the trust in accordance with the provisions of the will, but there would be marked disadvantages in attempting to do so. There are likely to be few graduates who wish to proceed immediately to training of the kind referred to: there will be some, and there is a significant risk that an attempt to administer the trust would lead to decisions to grant scholarships for study purposes which moved further and further away from the training referred to in the will. To pay regard of the spirit of the trust requires adopting a method of using trust property in which it truly is used, and does not remain unused except in relatively rare instances, nor remain accessible only to very small number of post-graduate students. 26The limitations of availability to studies overseas and to immediate post-graduate candidates have come to impede practical attainment of the original purposes of the trust, having regard to the spirit of the trust. The likelihood is that a candidate would see the opportunity to travel overseas for a further post-graduate degree as no more than an opportunity to obtain a second post-graduate degree on closely similar but not identical subjects. There would be candidates who wished to do this, and there would be candidates who would benefit from the opportunity, but the limitation to those would not tend to promote good and effective use of the trust assets or attainment of the objects of the trust, except in very few cases. 27The plaintiff tendered results of searches by a paralegal into the availability of courses overseas which could have some claim for consideration. Some relate to tuition for short periods, a week or less; I leave these out of consideration as it could not reasonably be regarded as appropriate to spend trust moneys on living expenses and overseas travel for such a small advantage. The research identified two courses of more substantial length, as to which it was the plaintiff's contention that they did not satisfy the requirement of being advanced training in Secretarial and Administrative knowledge. There are, I am sure, many and perhaps hundreds of courses conducted overseas by institutions granting Masters of Business Administration or similar degrees for which some colour of a case could be made that they go some distance towards satisfying the requirement for advanced training in Secretarial and Administrative knowledge. There is room for definitional debate, perhaps endlessly, as studies become less focused on Secretarial and Administrative knowledge and more on commerce, trading, business management, economics and even more widely, increasingly distant and with ever greater likelihood that the relationship with the objects of the trust would be no more than incidental. 28In communications between the parties while this litigation was pending concern was expressed on behalf on the defendant to the effect that the scheme, in an earlier draft form, would as a practical matter result in bringing the trust fund in-house, as a fund available for the plaintiff to expend incidentally to the general conduct of its Diploma course and educational function. This was an appropriate concern, and its expression led to a modification of the draft so as to make possible grants of scholarships for post-graduate study elsewhere than with the plaintiff, as well as scholarships for study for the plaintiff's own Diploma. Another modification provided a mechanism under which persons who are not part of the plaintiff's organisation participate in decisions relating to awards and scholarships, and reports are to be made to the Attorney General on the decisions made. With these modifications, I regard the scheme now put forward as a one which the Court should adopt. During argument I pointed out one respect in which I thought that the power of amendment should be more readily available; I felt that the limit of expenditure of capital to 10% in any one year, while generally appropriate, could become inappropriate if significant changes in value of money dictated higher expenditures. The plaintiff then proposed a simple change which has accommodated my concern. 29I have concluded that in the circumstances of the present the original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust. The trust property should be applied cy pres in accordance with the scheme put forward by the plaintiff, with the small modification I have mentioned. 30Submissions on behalf of the Attorney General supported the plaintiff's case and the adoption of the scheme, while not supporting all aspects of the views of the facts put forward by the plaintiff. Attention given by both parties to the terms of the scheme while the proceedings were pending has, appropriately, led to their both adopting similar positions. Counsel for the Attorney General expressed a wish to put submissions on the costs which should be allowed to the plaintiff. Counsel told me that the defendant does not accept that the research conducted by witnesses for the plaintiff regarding courses available in North American and European universities bears out the conclusions for which the plaintiff contends. I had regard to that material, but it has not had a prominent place in my considerations because of the amorphous nature of any conclusions which can be based on it. Only generalised conclusions are available from information about a large number of courses in many different institutions, and the conclusions cannot be very concrete or very useful. The defendant's contentions about the allowance to the plaintiff of costs in respect of these enquiries should be made in writing after I have published my conclusions on the principal claims. These concerns may result in further communication between the parties; it would be useful for those representing the plaintiff to state what costs are claimed in respect of this part of the case and in respect of the case generally. I prefer that any debate take place with an understanding of how much money is involved. I will reserve questions of costs. 31My orders are: