In the matter of the New South Wales Rural Fire Service & Brigades Donations Fund; Application of Macdonald & Or [2020] NSWSC 604

Ms Barber's Bushfire Appeal

1. Ms Barber established her public fundraising appeal on Facebook, a social media platform, on about 3 January 2020. Her initiative was spontaneous. Neither the trustees, nor the New South Wales Rural Fire Service contacted her before she acted. But her appeal clearly identified the RFS Fund 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 NSW Rural Fire Service & Brigades Donation Fund". 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 NSW Rural Fire Service & Brigades Donations Fund and your contribution will make an impact, whether you donate a lot or a little. Anything helps. Thank you for your support".
3. To facilitate their donations, Ms Barber's appeal page directed potential donors to an electronic payment system controlled by PayPal, the PayPal Giving Fund Australia ("the PayPal Giving Fund"). Potential donors were given some information about the operation of the PayPal Giving Fund as follows: "Donations are made to the PayPal Giving Fund Australia (ABN 65 106 950 945) and granted to the charity within 90 days, subject to PayPal Giving Funds policies. Learn more."
4. Potential donors could then click on the "Learn More" option, which gave them access to additional information about the PayPal Giving Fund. The company PayPal Giving Fund Australia Company Ltd ("the PayPal Trustee") is the trustee of the PayPal Giving Fund. In essence it operates as a facility by which charitable donations can be made to other charities. The constitutive documents of the PayPal Giving Fund are important for present analysis and are considered in more detail below.
5. The Court has been given a selection of the many messages that were generated on Ms Barber's Facebook fundraising page during the appeal, mainly from donors but also some from potential donors. The selection was directed at extracting messages posted to the page which indicated that a donor 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 RFS Fund. The aim of this exercise was to survey the range of donors that might conflict with limits in the RFS Trust Deed.
6. Under the direction of Mr Andrew Berriman, an Associate at Norton Rose Fulbright, Ms Sally Snashall, a paralegal at the firm, and Mr Lachlan Crosbie, 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 donors. 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.
7. The trustees submit that the questions which they have asked the Court isolate the issues about what is permitted under the RFS Trust Deed raised by the donors' intentions expressed in these posts. Having surveyed these posts, and the questions asked, in the Court's view they appear to achieve this objective.
8. Before considering the terms of the RFS Trust Deed, and its statutory context in the Rural Fires Act, these reasons address the mechanism by which the donated money from the appeal was paid to the RFS Fund, the PayPal Giving Fund.

The PayPal Giving Fund and its Operating Agreements

1. The PayPal Giving Fund is itself an express charitable trust, constituted by a trust deed dated 3 July 2018 ("the PayPal Giving Fund Trust Deed"). The PayPal Giving Fund redirects donations made to it, to the charity indicated by the donor. The terms on which it does this are set out in the PayPal Giving Fund Trust Deed and the PayPal Giving Fund's Donor Terms of Service.
2. The PayPal Giving Fund Trust Deed clause 4.1(a) provides for the application of the PayPal Giving Fund as follows: "The [PayPal] 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."
3. The PayPal Giving Fund Trust Deed, 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]"
4. The RFS Fund qualifies as an "Eligible Entity" in the PayPal Giving Fund Trust Deed. The RFS Fund is a charity within the meaning of the Charities Act 2013 (Cth), s 5. Moreover, the trustees have submitted and the Court accepts that the RFS Fund 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.
5. The PayPal Giving Fund Trust Deed, 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."
6. When making a payment to the PayPal Giving Fund, all donors to Ms Barber's appeal agreed through a "clickwrap" agreement that they would be bound by the PayPal Giving Fund's Donor Terms of Service ("the Donor Terms of Service").
7. The Donor Terms of Service, clauses 3 to 6, require that donors to the PayPal Giving Fund recommend a corresponding grant from/by the PayPal Giving Fund to an Eligible Charity as defined, but the PayPal Giving Fund is not bound by a donor'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 PayPal Giving Fund, you understand and agree that your donation is made to PayPal Giving Fund Australia, a Public Ancillary Fund (ABN 65 106 950 946). PayPal Giving Fund receives contributions and disburses those contributions to charities in the form of grants. PayPal Giving Fund will only grant donations to organisations that are an Eligible Charity. "Eligible Charities" includes the funds, authorities or institutions that: … [The Donor Terms of Service here set out the eligible Charities requirements, which the RFS Fund satisfies] 4) When you donate to PayPal Giving Fund you will recommend that PayPal Giving Fund make a corresponding grant to an Eligible Charity in the amount of your donation. 5) PayPal Giving Fund will make every effort to grant the funds you donate to your recommended Eligible Charity. You acknowledge that delivery is subject to PayPal Giving Fund's Donation Delivery Policy. You understand that PayPal Giving Fund, 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 PayPal Giving Fund to be considered tax-deductible; it must, among other requirements, be a genuine gift to PayPal Giving Fund. 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 PayPal Giving Fund to an Eligible Charity."
8. Each donor must enter into the Donor Terms of Service before donating. Despite the charitable legal environment of the Donor Terms of Service, they represent a binding agreement between the donor and the PayPal Giving Fund, with the latter at least promising to provide payment services in exchange for the donation. Each donor's subsequent act of making a donation to the Paypal Giving Fund, through the Facebook page displaying the RFS Fund as the nominated charity for Ms Barber's appeal, constitutes a "recommendation" of the RFS Fund within the meaning of that term in the Donor Terms of Service, clauses 4 and 5.
9. By late January 2020, donations totalling approximately $50 million had been made to the Paypal Giving Fund in response to Ms Barber's appeal. The PayPal Trustee paid this money to the RFS Fund.
10. Payments from the PayPal Giving Fund to the RFS Fund are governed by a Charity User Agreement made between the trustees of the two funds. In the text of the Charity User Agreement "we" means the Paypal Trustee and "you" means the trustees of the RFS Trust. The Charity User Agreement, clause 1 defines the nature of the relationship between Eligible Charities, such as the RFS Fund, and the PayPal Giving Fund 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.paypal.com/au/fundraiser/hub (the "Services"). We accept donations from donors, which we then grant to the Eligible Charity recommended by the donor pursuant to our Charity Certification Policy and Donation Delivery Policy. Alldonations made by donors are made to PayPal Giving Fund. We also issue receipts to donors for each donation they make to allow donors to deduct their donations as permitted by applicable tax law."
11. The Charity User Agreement, clause 4, mirrors the Donor Terms of Service and preserves as between an Eligible Charity and the PayPal Giving Fund the exclusive legal control over all donations received from donors. 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 Donors make their donations to PayPal Giving Fund and not to Eligible Charities. PayPal Giving Fund issues all legally-required tax receipts to Donors. We, in turn, make charitable distributions to qualifying Eligible Charities that are recommended by donors. As a result, any donations your organisation receives pursuant to this Agreement are made by PayPal Giving Fund. PayPal Giving Fund retains exclusive legal control over all donations received from donors, and PayPal Giving Fund 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 donor for a particular donation), if, in our sole discretion and determination: i. we are unable to deliver it (e.g., if the PayPal 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 donor 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."
12. 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 PayPal Giving Fund 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 PayPal Giving Fund if you cease to be an Eligible Charity; ii. you will utilise donations received from PayPal Giving Fund 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 grant the licences to PayPal Giving Fund 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 PayPal Giving Fund, PayPal Australia Pty Limited and its affiliates, any other Eligible Charity or any partner or sponsor of PayPal Giving Fund identified within the PayPal Giving Fund 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 PayPal and/or any partners of PayPal Giving Fund."
13. Once the PayPal Giving Fund appeal monies were transferred to the RFS Fund they were held subject to the RFS Trust Deed.

The RFS Fund and the RFS Trust Deed

1. The RFS Fund 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 RFS Trust Deed established the RFS Fund. Much of the language of the the RFS Trust Deed assumes familiarity with or borrows terms that are used in the Rural Fires Act.
3. Recital B of the RFS Trust Deed records that the RFS Fund "will be established and operated solely for the purpose of supporting the volunteer-based fire and emergency services activities of the Brigades". Clause 1.1 defines "Brigades" as "all brigades establish from time to time under the Rural Fires Act 1997 (NSW) as amended."
4. The RFS Trust Deed, clauses 2.1 and 2.2, establish and name the RFS Trust. Clause 2.3 sets out the purposes of the RFS Fund. 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 the Trustees at any time and from time to time think fit as follows: (a) to or for the Brigades 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 Brigades 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."
5. The RFS Trust Deed, clauses 2.4 provides that in exercising the discretion under clause 2.3 the trustees may have regard to recommendations of an Executive Committee established under the RFS Trust Deed and any public rulings or guidelines issued by the Australian Taxation Office concerning public funds endorsed as Deductible Gift Recipients.
6. The purpose of the RFS Fund is achieved through the maintenance of a "Gift Fund", according to clause 3 of the RFS Trust Deed. Clause 3.3 places limits on the use of the Gift Fund: "3.3 Limits on use of Gift Fund The Trustees 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 the Trustees in connection with those gifts and contributions. No payments from or distributions of the Gift Fund may be made directly or indirectly by the Trustees at any time otherwise than in accordance with this Deed."
7. The purpose of the RFS Fund, particularly the purpose of "providing training and resources" is to be construed by reference to the statute, the Rural Fires Act, that creates the command and operational structure of the brigades that the RFS Fund supports.

The Rural Fires Act

1. Rural Fires Act, s 8 establishes the NSW Rural Fire Service ("the RFS") and aspects of its command structure. Sections 8(1) and 8(2) provide as follows: "NSW Rural Fire Service (1) There is established by this Act the NSW Rural Fire Service. (2) The Service comprises the following members: (a) the Commissioner and other staff of the Service, (b) (Repealed) (c) volunteer rural fire fighters."
2. Apart from the Commissioner and other permanent staff, s 8(3) makes clear that the RFS is a volunteer service. The "volunteer rural fire fighters" referred to in s 8(2) are defined in s 8(3) in the following way: "volunteer rural fire fighters means: (a) officers and other members of rural fire brigades, and (b) any person other than a member of a rural fire brigade 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 rural fire brigade."
3. By this provision, the act widens "volunteer rural firefighters" to include persons who are not an officer or member of a rural fire brigade but who informally volunteers and "engages in fighting…a fire" under the "authority and supervision" of an officer of a brigade. Rural Fires Act, s 9 provides for the functions of the Service of the RFS. Rural Fires Act provides: "9 Functions of Service (1) The NSW Rural Fire Service has the following functions: (a) to provide rural 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 brigades, 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: rural fire services includes the following: (a) services for the prevention, mitigation and suppression of fires in rural fire districts, (b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts, (b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural 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."
4. 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": Rural Fires Act, s 13 "service standards". The Commissioner issues such policy statements from time to time.
5. As earlier indicated, the RFS Trust Deed (clause 1.1) defines "Brigades" as "brigades established from time to time under the Rural Fires Act". Rural Fires Act, s 15 provides for the formation of brigades in a manner consistent with the RFS Trust Deed. Section 15 provides: "15 Formation of rural fire brigades (1) A local authority may form one or more rural fire brigades for any rural fire district constituted for its area or part of its area. (2) Two or more local authorities may jointly form a rural fire brigade for a rural fire district constituted for their areas. (3) A rural fire brigade 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 rural fire brigade for a rural fire district if any local authority requested to form a rural fire brigade 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."
6. A rural fire brigade that is established under Rural Fires Act will fall within the object of the RFS Fund, "to or for the Brigades…" in clause 2.3(a) of the RFS Trust Deed. Such a rural fire brigade also forms part of the RFS. A rural fire brigade so established will have the various functions set out in Rural Fires Act, s 9. Section 8(3) implies that rural fire brigades consist of "officers and other members" who, according to s 8(3) are "volunteer rural fire fighters". But they all form part of the NSW Rural Fire Service: s 8(2).
7. The Rural Fires Act provides for aspects of the command structure and organisation of brigades. The body of persons forming a rural fire brigade 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 rural fire brigade are to keep a register of members in accordance with the service standards. An officer of a rural fire brigade or a group of rural fire brigades has functions conferred on the officer under the Rural Fires Act or any other legislation: s 21.
8. The Rural Fires 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 Rural Fires Act confers powers on officers of a rural fire brigade 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.
9. The Commissioner may authorise officers to enter land to investigate fires: Rural Fires Act, Part 2, Division 3A. Rural Fires 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 rural fire brigade or group of rural fire brigades authorised for this purpose by the Commissioner: s 39. The Rural Fires Act recognises that interstate fire brigades 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 rural 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) While 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 rural 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 rural fire brigade, the officer in charge of that rural fire brigade 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 St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 ("Macedonian Church").
2. This is an apt case for the Court to give judicial advice. The trustees are seeking the Court's direction or advice as to the administration of money controlled by the RFS Fund 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. The Court's jurisdiction is enlivened to give advice or direction under s 63: see Macedonian Church at [58].
3. And the permitted purposes of the RFS Fund are those identified in the RFS Trust Deed. Questions arise here "respecting the interpretation of the trust instrument" within the meaning of s 63(1): see Macedonian Church 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 Rural Fires Act.
4. The statement of facts indicates that there is no possibility of the RFS Fund being in surplus with respect to its purposes. None of the conditions necessary for a cy-pres scheme are satisfied in this case: see J D Heydon and M J Leeming, 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. The Court's judicial advice under Trustee Act, s 63 does not preclude an individual donor 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 PayPal Giving Fund or the RFS Fund. But any such suit would primarily be brought against the PayPal Trustee but may also involve the RFS Fund. 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 PayPal Giving Fund and the RFS Fund

1. Mr Giles SC, counsel for the trustees has submitted, and the Court agrees, that the donated money became, after its receipt by the PayPal Giving Fund, the subject of a charitable trust which was to be administered according to the PayPal Trust Deed. After the money was paid from the PayPal Giving Fund, it became the subject of a separate charitable trust, the RFS Fund, according to the RFS Trust Deed.
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); Ex rel Nye v Cathedral Church of Brisbane (1977) 136 CLR 353 and Eurella Community Services Inc 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 donors were responding, may be good evidence of the donors' intentions.
3. Here the result is clear. Each of the donors made a payment to the PayPal Giving Fund by way of an internet facility with published terms that stated the effect of the donation. This is so despite what the donors may have hoped or intended might be done with the money. The donors should be taken to have intended to make the payment to the PayPal Giving Fund 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 donor made a payment to the PayPal Giving Fund by any other method.
4. The PayPal Giving Fund paid the donated money to the RFS Fund. The effect of, the PayPal Giving Fund's payment of money was to donate it to the RFS Fund on the terms in the RFS Trust Deed.
5. The various public and perhaps private statements made by Ms Barber or any of the donors do not bind the trustees' application of the funds that they have received from the PayPal Giving Fund. The terms of the RFS Trust Deed that establishes the RFS Fund binds the trustees.
6. Any funds received by the trustees in that capacity must be applied only for the purposes set out in the RFS Trust Deed. Any other application of the funds would be a breach of trust. The Court is much assisted by the analysis of the RFS Trust Deed by counsel which have dealt with the various suggested purposes to which the RFS Fund might be applied. These reasons now deal with those purposes in relation to the RFS Trust Deed.
7. As has been submitted on behalf of the trustees, the terms of the Charity User Agreement supports the conclusion that the payments of donated money from the PayPal Giving Fund were intended to be the subject of a second trust in the form of the RFS Fund. Payments from the PayPal Giving Fund are "charitable distributions to qualifying Eligible Charities that are recommended by donors": Charity User Agreement, clause 4(d). And the recipient of those distributions has represented and warranted that the donations received from the PayPal Giving Fund 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 RFS Fund. It does not matter whether the trustee of the PayPal Giving Fund knew of or understood the terms of the RFS Trust Deed. The subject matter of the trust is the money paid from the PayPal Giving Fund to the RFS Fund. The object of the trust is the charitable purpose stated in clause 2.3 of the trust deed for the RFS Fund. These reasons now deal with issues that arise from consideration of clause 2.3.

(1) Giving the Donated Money to Other Charities, Interstate Rural Fire Services or to Animals

1. The Court advises trustees of the RFS Fund 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 the trustees can put the donated money are those specified in the RFS Trust Deed, clause 2.3. And clause 3.3 prohibits payments being made from the RFS Fund otherwise than in accordance with the RFS Trust Deed (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 brigades" established under the Rural Fires Act. Nor is it an "Authorised Investment" under the RFS Trust Deed. Such a donation cannot be characterised as an "administrative" cost of the RFS Fund. A donation to another charity would, as the trustees have submitted, be ultra vires to the purpose of the RFS Fund and a breach of trust.
4. As to animals affected by bushfires, nothing in the RFS Trust Deed, clause 2.3(a) would permit such a payment. Clause 2.3(a) permits payments "to or for the Brigades" 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 firefighting equipment and facilities", or "providing training and resources" or "meet[ing] the administrative expenses of the brigades" includes giving assistance to animals affected by bushfires. The words cannot be made to do such work. And neither the trustees nor the Attorney General submit that they can.
5. As to the making of payments for interstate rural fire services, the words of clause 2.3(a) are equally restrictive. The "brigades" is a reference to brigades established under the Rural Fires Act, which applies to brigades established or operating within this State: Rural Fires Act, s 9(1)(a). It would not be a permissible application of trust funds for payments to be made to rural fire brigades in other States or Territories of Australia.
6. There is an exception to this that arises under Rural Fires 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 brigades are integrated into the command structure of the brigades, 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 brigades, 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 brigades 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 brigades.

(2) A Fund for Injured Rural Firefighters and Families of Firefighters Injured or Killed in Service

1. The trustees are considering setting up or contributing to a fund to support rural firefighters injured while firefighting or the families of rural firefighters killed while firefighting. This proposed application of the RFS Fund requires wider consideration of the RFS Trust Deed.
2. The language of clause 2.3 itself and the defined functions of "brigades" under the Rural Fires Act create their own limits on what payments the trustees can make in this direction. The trustees submit, these purposes are generally not directed to, in effect, ameliorating the consequences of fires. To the extent Ms Barber identified using the money for the purpose of preventing future fires and resourcing the brigades, 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 brigades established under the Rural Fires 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 RFS Fund mean those resources that will enable brigades to carry out and fulfil the functions of the RFS. They are, according to the Rural Fires Act, s 9(1)(a), "to provide rural fire services for New South Wales".
5. The definition of "rural fire services" in s 9(4) of the Rural Fires Act includes "the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts": s 9(4)(b). The trustees can use the donated funds to give to brigades to address physical dangers created by the recent fires.
6. The trustees can use the money consistently with clause 2.3 of the trust deed (and the Rural Fires Act, s 9) to pay brigades to enable them to meet the costs of providing resources to protect persons from dangers to their safety and health arising from fires in rural fire districts. But as the trustees have submitted several conditions would apply to this use. First, the payment from the RFS Fund must still be to or for brigades for "resources", which are to be used by the brigades. 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 Rural Fires 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 brigades are generally to prevent fires and in firefighting. The trustees 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. The trustees could pay money to brigades 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 the trustees have submitted.
7. But each of those is in the immediate aftermath of a fire. The Attorney General submits, in contrast, that the Rural Fires 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 injured firefighters and the families of fallen firefighters beyond the aftermath of fires. Even though it would not come directly within preventing and fighting fires (Rural Fires Act, s 4(a)), a fund to support the families of fallen firefighters 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 brigades in "providing…resources". The Court has interpreted this as human resources. Clause 2.3(a) itself emphasises that all of the RFS Fund'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 firefighters, or to support the families of deceased firefighters is more likely to encourage volunteers. Unlike a service with a more formal command structure such as in the Australian Defence Force, the Rural Fires Act recognises this is a volunteer service comprised in large part of "volunteer rural firefighters". 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 Rural Fires Act, s 9(4)(a) is not confined to the immediate aftermath of fires. Services "for the prevention, mitigation and suppression of fires in rural fire districts" would also authorise expenditure beyond the immediate aftermath of a fire in execution of RFS brigade-related functions.

(3) Providing Volunteer Firefighters Physical and Mental Health Training and Resources and Trauma Counselling Services

1. The trustees submit, and the Attorney General puts no submission to the contrary, that payments from the RFS Fund to provide volunteer firefighters 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 firefighters 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 brigades for purposes compatible with RFS functions. Expenditure to return a firefighter to active duties is permissible under the RFS Trust Deed, 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 rural firefighters as a result of fires. The service standards issued under Rural Fires Act, s 13 directly address the trauma related consequence of firefighting. The trustees could pay brigades in order to provide resources to provide that trauma counselling to firefighters who require it as a result of fires. To do so protects the firefighters "from a danger to their safety and health arising from the fires."

(4) Fund for Rural Firefighters' Attendance at Relevant Skills Courses

1. The trustees proposed either setting up or contributing to a fund to meet the costs for volunteer rural firefighters to attend and complete courses that improve their skills related to the volunteer based fire and emergency services activities of the brigades. In the Court's view, the setting up or contribution to such a fund falls within "training" in the RFS Trust Deed, 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. The Court gives the following advice to the questions asked. Are the Plaintiffs justified in the proper performance of their powers and duties as trustees of the RFS Fund, in doing any of the following acts with respect to the monies contained in the RFS Fund (including the money donated to the fundraising appeal commenced by Ms Barber in January 2020 since paid to the RFS Fund)? The following are the acts in question: 1. paying money to other charities or rural 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 rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting. Answer: Yes. 1. providing; 1. physical health training and resources; 2. mental health training and resources; or 3. trauma counselling services, to volunteer firefighters as defined in s 8 of the Rural Fires Act, who require them in connection with performing the functions of the NSW Rural Fire Service, as defined by s 9 of the Rural Fires Act. Answer: Yes. 1. setting up or contributing to a fund to meet the costs for volunteer rural firefighters (as defined in s 8 of the Rural Fires Act) to attend and complete courses that improve skills related to the volunteer-based fire and emergency service activities of the Brigades, as defined in clause 1.1 of the RFS Trust Deed. Answer: Yes. 1. The Court orders that the Plaintiffs' costs and those of the Attorney General be paid out of the RFS Fund on the indemnity basis.
2. Some donors may have intended or hoped that the money they donated would be used for purposes beyond those which the Court has advised are permissible. Despite the trustees' 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.

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 brigades [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, "brigades and it" to "brigades, it " [70] third line, "to enable or assist the brigades" to "to enable or assist" the brigades [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