Over the spring and summer of 2019/2020, Australia suffered a series of catastrophic bushfires. Tragically 33 people were killed. Millions of hectares of bushland and agricultural land were burnt out. Thousands of homes and properties were destroyed and countless animals were killed or injured.
In early January 2020, Celeste Barber responded to the crisis by launching a charitable crowdfunding appeal. Ms Barber is a comedian, actress and Instagram star with millions of followers in Australia and overseas. Her appeal employed PayPal, an internet payment service. Ms Barber nominated the NSW Rural Fire Service and Brigades Donations Fund (‘the RFS Fund’) as the proposed recipient of the appeal donations.
Ms Barber’s goal was to raise $30,000.00. Donations with accompanying messages of empathy and support flooded in from all around the world. Celebrities worldwide donated significant sums. Ms Barber’s appeal was a spectacular success. She raised $51,000,000.00. PayPal remitted that money to the RFS Fund.
The RFS Fund is an express Charitable Trust, controlled by the RFS Trust. Issues arose in relation to the expenditure of the donated money. There was significant publicity surrounding the issue of expenditure.
On 16 April 2020, the Trustees of the RFS Fund applied to the NSW Supreme Court for advice under the Trustees Act 1925 in relation to the proper interpretation of the RFS Trust Deed. The Attorney General of NSW also appeared in the proceedings.
The Trustees submitted to the Court that they wished to honour the intentions and beliefs of Ms Barber and donors who responded to the appeal concerning what should be done with the donated money. However, the trustees were also careful to ensure that they acted consistently with the RFS Trust Deed and in accordance with the law.
The Trustees asked the Supreme Court whether they were justified, in the proper performance of their powers and duties as Trustees, in applying the monies in the RFS Fund to the following four possible objects:-
1. Paying money to other charities or rural fire services whether in NSW 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 rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting.
3. Providing physical health training and resources, mental health training and resources or trauma counselling services to volunteer firefighters.
4. Setting up and contributing to a fund to meet the costs of volunteer rural firefighters to attend courses to improve skills.
The Supreme Court examined the PayPal terms and conditions and the RFS Trust Deed. The Court held that the various public statements made by Ms Barber or any of the donors did not bind the Trustees’ application of the Fund they received. Justice Slattery therefore made the following determinations:-
(a) The Trustees of the RFS Fund cannot use the donated money to give to other charities, or to donate interstate, or to help people or animals affected by bushfires. The reasoning was that the uses to which the Trustees can put the donated money were those specified in the RFS Trust Deed. The RFS Trust Deed prohibited payments being made from the Fund otherwise than in accordance with the Trust Deed.
(b) The Trust Deed supports expenditure to ensure human resources are available for future firefighting, and therefore it is permissible to create a fund to support the families of fallen firefighters and injured firefighters, as this would encourage people to volunteer to contribute to preventing and fighting fires.
(c) The Court interpreted the Trust Deed’s aim of supporting fire brigades in providing resources includes human resources. It is permissible to provide volunteer firefighters with physical and mental health training, and counselling services, and to attend courses as these purposes come directly within the words “training and resources” which are permissible under the Trust Deed.
These uses may not have been the outcome that some donors may have intended or hoped when they donated the money. However, it was proper for the Trustees to seek directions from the Court to ensure that they act in accordance with the law and the Trust Deed.