Litigation and Dispute Resolution

Mandatory Injunctions – Clive Palmer’s cautionary tale

9 February, 2016

The case of In the matter of the New South Wales Rural Fire Service & Brigades Donations Fund; Application of Macdonald & Or [2020] NSWSC 604 was handed down on Monday, 25 May 2020 with the Supreme Court advising that the $51 million raised by Celeste Barber and donated to NSW Rural Fire Service cannot be paid to other charities or other rural fire services to assist in providing relief to persons and animals affected by bushfires, whether in NSW or in the other States and Territories.

The background facts

In response to the catastrophic impact of the Australian bushfires over our spring and summer 2019/2020, Celeste Barber commenced a crowdfunding appeal in January 2020 with a call to action: “Please help anyway you can. This is terrifying.”

Her appeal used PayPal, an internet payment service, and nominated the NSW Rural Fire Service & Brigades Donation Fund (the RFS Fund) as the recipient of the appeal donations.

The appeal was a huge success. Donations flooded in from interstate and all around the world, with Ms Barber raising a total of $51 million on her platform.

During the course of accepting donations, Ms Barber and donors expressed the hope that some of the donations could go to other charities, such as the Australian Red Cross, WIRES and other fire services in other states. After the fundraiser had ended though, it emerged that certain provisions in the NSW RFS Fund’s trust deed likely prevented these types of distributions.

The trustees of the NSW RFS Fund therefore applied to the Supreme Court of NSW to seek judicial advice about the interpretation of the RFS Trust Deed and for clarification concerning how they could distribute the appeal donations.

The importance of how people donated

All donors made their donation via Ms Barber’s Facebook page to PayPal’s Giving Fund, which itself is an express charitable trust that is constituted by a trust deed, the ‘PayPal Giving Fund Trust Deed’.

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.

In accordance with the Donor Terms of Service, a donation through Ms Barber’s Facebook page that displayed the RFS Fund as the nominated charity, constituted a recommendation by the donors for PayPal to apply the donations to the RFS Fund.

Once the donation was received by the RFS Fund, which is also an express charitable trust and governed by a trust deed (the RFS Trust Deed), the trustees were faced with the issue that pursuant to clause 2.3 of the RFS Trust Deed, the funds were only permitted to be used for the following purposes:

(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.

(collectively the Purposes)

The interpretation of the trust deed

The Court held that distributing the donations in accordance with the RFS Trust Deed could only be done for the Purposes outlined above. In advising the trustees as to whether funds could be distributed outside the prescribed Purposes, the Court looked to the interpretation of the RFS Trust Deed within the meaning of s 63(1) of the Trustee Act and held:

“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…. 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” (emphasis added).

The Court’s judicial advice

Slattery J gave judicial advice to the trustees of the RFS Fund which included as follows:

  • Donations to other charities for bushfire related purposes are not permitted. Pursuant to the Purposes, this payment would not be a payment to “to or for brigades” as defined by the Rural Fires Act. It also wouldn’t be an “authorised Investment” or an “administrative expense” under the RFS Trust Deed. Accordingly, a donation to another charity would be “ultra vires” to the Purposes and a breach of trust.
  • the NSW RFS Fund can set up or contribute to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting. The Purposes of the RFS Trust Deed include payments to brigades established under the Rural Fires Act “to enable or assist them to meet the costs of providing … resources”. The Court determined that “resources” include human as well as financial resources and can refer to more than physical items such as “fire-fighting equipment and facilities”.
  • the NSW RFS Fund can provide physical health training and resources, mental health training and resources, or trauma counselling services to volunteer firefighters, who require them in connection with performing the functions of the NSW RFS. These purposes come directly within the words “training and resources” within the Purposes of the RFS Trust Fund. Dangers to safety and health arising from fires within the Rural Fires Act include the dangers of trauma caused to rural firefighters as a result of fires.


This case serves as a timely reminder that if a specific purpose is attached to a donation made to a charitable trust, the trustees are bound to distribute trust monies in accordance with such purpose(s). As Slattery J observed in the present case:

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. 

It will be interesting to see how the Rural Fire Services in other States and Territories interpret and utilise the Court’s findings in relation to the distribution of their own donations – such as using the funds to support rural firefighters who are injured during firefighting, or towards families of firefighters who lose their lives firefighting, or to provide mental health training and trauma counselling to volunteer firefighters.

McCabes Litigation and Dispute Resolution team has extensive experience in reviewing and advising clients on the meaning and effect of trust instruments, including charitable trust deeds. Please do not hesitate to contact us if you require any assistance with the topics raised in this article or trusts generally.

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