Edwards v Attorney-General for the State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01322

IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and ss 63 and 63A of the Trustee Act 1958 (Vic)

BETWEEN:

JAMES CAMPBELL EDWARDS (in his capacity as Trustee of the Campbell Edwards Trust) & ORS (according to the attached Schedule)	Plaintiffs
v
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2023
DATE OF RULING:	22 September 2023
CASE MAY BE CITED AS:	Edwards v Attorney-General for the State of Victoria
MEDIUM NEUTRAL CITATION:	[2023] VSC 569

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TRUSTS AND TRUSTEES – Charitable trust – Application for judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02 – Interpretation of trust deed – Whether certain purposes or organisations should be approved – Whether trust deed should be amended – Trustee Act 1958 (Vic) ss 63, 63A – Jurisdiction to provide judicial advice enlivened – Answers to questions of construction provided – Application for amendments allowed because it is expedient to do so – Order that the trustees be indemnified for their reasonable legal costs from the assets of the Trust.

WORDS AND PHRASES – Meaning of ‘primitive Christianity’.

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APPEARANCES:	Counsel	Solicitors
For the trustees	Mr C Young KC with Mr P Annabell	Cornwalls
No appearance for the Defendant

TABLE OF CONTENTS

Introduction and background.................................................................... 1
The terms of the Trust Deed...................................................................... 2
The statutory framework............................................................................ 5
The originating motion............................................................................... 7
The evidence................................................................................................. 9
Legal advice and theological opinion received by the trustees.......... 13
The trustees’ submissions......................................................................... 28
Subsequent submissions........................................................................... 37
Consideration............................................................................................. 38

Annexure A – Consolidated Trust Deed showing trustees’ proposed amendments............................................................................................... 48

HER HONOUR:

Introduction and background

The Campbell Edwards Trust (‘Trust’) was established by a deed poll executed on 21 November 1922 (‘Trust Deed’) by the late Robert Campbell Edwards (‘founder’). The founder died on 25 August 1946.

The preamble to the Trust Deed states that the founder wished to establish a religious educational and charitable purposes trust, whose objects included the cause of primitive Christianity ‘meaning the Church as it was in its beginning’ and charitable work for the benefit of poor children. The terms of the Trust Deed were varied on several subsequent occasions during the founder’s lifetime.

The Trust is a registered charity pursuant to the Australian Charities and Not-for-profits Commission Act 2012 (Cth). As at 31 December 2021, the net assets of the Trust totalled $41,007,756, and primarily comprised shares or other interests in listed companies and funds.

The first to seventh plaintiffs in this proceeding are the current trustees of the Trust (‘trustees’).[1] The eighth plaintiff is a body corporate limited by shares, which was incorporated on 24 November 1978 and appointed to act as the custodian trustee of the Trust.[2] Most, but not all of the individual trustees are descendants of the founder.
[1]The second plaintiff is now deceased.
[2]Pursuant to its articles of association, a person must be a trustee of the Trust in order to be appointed as a director of the eighth plaintiff, and a person will cease to be a director of the eighth plaintiff if they cease to be a trustee of the Trust.

By originating motion filed on 3 April 2023, the trustees seek:

(a) judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) in relation to the administration of the Trust;

(b) orders pursuant to ss 63 and/or 63A of the Trustee Act 1958 (Vic) (‘Trustee Act’) that the Trust Deed be amended in the manner set out in exhibit JCE-1 to the affidavit of James Campbell Edwards sworn 9 December 2022 (‘first trustee affidavit’); and

(c) an order that the trustees’ costs of this application be paid or reimbursed out of the Trust’s funds on an indemnity basis.

The trustees’ application was made in the aftermath of inter-trustee litigation in the period between 2017 and 2020 (‘2017 proceeding’).[3] Following the receipt of legal advice concerning particular areas of uncertainty in the interpretation of the Trust Deed, the trustees determined to issue this proceeding.
[3]The first trustee affidavit does not descend into any detail about the issues in the 2017 proceeding, but from my review of the reasons given by Lyons J when determining an application with respect to costs (see [2020] VSC 456), it appears that two trustees who had been removed as trustees sued the remaining trustees seeking their reinstatement. The removal of the minority trustees followed disputes among the trustees regarding, among other things, whether the trustees were, in their funding decisions, straying too far from the original objects and purposes of the Trust.

The Attorney-General for the State of Victoria (‘Attorney-General’) was joined as the proper contradictor to the trustees’ application, but has subsequently indicated that she does not oppose the application and, specifically, the orders sought by the trustees in the originating motion. The Attorney-General did not appear at the hearing on 27 July 2023, and has made no submissions with respect to the application.[4]
[4]The Court was provided with copies of correspondence between the Victorian Government Solicitor’s Office and the trustees’ solicitors confirming the Attorney-General’s position.

The terms of the Trust Deed

The preamble to the Trust Deed relevantly states:

WHEREAS I am desirous of establishing a Trust (to be called the “CAMPBELL EDWARDS TRUST”) for religious educational and charitable purposes and with that intent have decided to execute these presents

Clause (a) of the Trust Deed sets out the principal object of the Trust. Given the centrality of this clause to the present application, cl (a) is reproduced in full below:

To devote the funds of the Trust to the cause of primitive Christianity meaning the Church as it was in its beginning. Such Church or assembly of believers to consist of such as have honestly and truly confessed their faith in the Lord Jesus Christ and have been immersed in water in the name of the Father, Son and Holy Spirit for remission of their sins, meeting every first day in the week to remember their Lord in the partaking of the bread and wine memorial of His Body and blood, edifying each other in psalms and hymns and spiritual songs mutual exhortation and teaching in which no salaried officer or paid preacher or teacher shall take part except on occasions of not more than one first day out of every four and then only on the same standing as the other members of the Assembly PROVIDED HOWEVER that a Teacher may be supported by three or more Churches jointly for the purpose of training the members to act as preachers teachers or missionaries. Such Christian assemblies may receive assistance in the matter of rent of premises simple furnishings and necessary utensils or of help in supporting occasional or special evangelistic services but not for the support of any resident officer preacher or teacher, a resident preacher or teacher to mean one who in whole or in part is supported regularly by the local assembly either directly or indirectly AND it shall be an express condition that the Lord’s Day morning meeting for the breaking of bread shall be essentially a member’s Meeting when opportunity shall be given to the brethren to exercise their gifts of speech in exhortation admonition and teaching under the control of the elder brethren of the assembly.

Clause (c) of the Trust Deed also sets out an additional object of the Trust, as follows:

Funds may also be devoted to charitable work for the benefit of poor children such for example as the Burwood Boys’ Home or the like.[5]

[5]The Burwood Boys’ Home was established by the founder in 1895.

Relevantly, the Trust Deed made no express direction and imposed no express restriction on the deployment of the capital and the income of the Trust. Clause (i) of the Trust Deed conferred upon the founder, and the founder alone, ‘full power to revoke vary or add’ to the provisions of the Trust Deed.

Between the Trust’s establishment in 1922 and the founder’s death in 1946, the founder varied the terms of the Trust Deed on several occasions, including by way of:

(a) a deed dated 26 January 1929 (‘1929 variation’); and

(b) a deed dated 19 June 1946 (‘1946 variation’).

The 1929 variation added four new clauses – A.1, A.2, A.3 and A.4 – to the Trust Deed, including, relevantly, as follows:

A.2 the Trustees may make direct donations for the benefit of such Church and charitable purposes as are in accordance with the provisions of the Trust but such donations shall be limited to not more than ten percent of the yearly income of the Trust.
…
A.4 the Trustees may from time to time permit any person or persons of indigent circumstances to occupy any real property held by the Trustees either with or without rent and upon such terms or conditions and for such periods as the Trustees in their absolute discretion may deem fit.

Clause A.2 of the Trust Deed was varied by the 1946 variation as follows:

A.2 The Trustees may make direct donations for the benefit of such Church as is in accordance with the provisions of the Trust as varied by this present Declaration of Trust and also for any charitable purpose which my said trustees in their unanimous opinion from time to time consider to be such as I would wish to support and they are to be the final judges of the class of charity in which I would be interested but such donations shall be limited to not more than fifteen per cent[6] of the yearly income of the Trust.[7]

[6]Originally 10 percent pursuant to the 1929 variation.

[7]The only clause of the Trust Deed which refers to ‘the income of the Trust’ is cl A.2 of the Trust Deed, as varied from time to time.

The 1946 variation also varied cl (a) of the Trust Deed to include the following additional words (‘1946 proviso’):

PROVIDED FURTHER that in case the Trustees for the time being from time to time find it impracticable to discover churches or congregations conforming strictly to the pattern defined in this clause then the said Trustees shall be at liberty to devote the said funds to purposes which in their unanimous opinion are as near as they can find to the Spirit and purpose of the present trust and they are to be the final judges of whether or not such purposes are sufficiently near to such definition.

The remaining provisions of the Trust Deed are largely irrelevant to the issues for resolution before the Court in this proceeding.

A consolidated version of the Trust Deed which annotated and marked-up the provisions of the original deed poll and the variations made between 1922 and 1946, along with the amendments sought by the trustees in this proceeding, has been prepared by the trustees’ solicitors, and is included as Annexure A to these reasons.

In 2019, terms of settlement were entered into by the parties to the 2017 proceeding, which included a term that the trustees must obtain advice from senior counsel regarding certain areas of uncertainty in the interpretation of the Trust Deed and the administration of the Trust, as follows:

The parties agree to do all things necessary including retaining a law firm to brief and seek an opinion from, on behalf of the trustees of the Trust, a member of senior counsel for Victoria (Victorian QC), specialising in the law relating to charitable trusts, on the following basis:
…
(g) The parties agree to act promptly in accordance with the opinion or clarification or supplementary opinion provided by the Victorian QC, once obtained.

An advice was subsequently provided by Jennifer Batrouney KC on 12 December 2019 (‘Batrouney advice’). In the course of providing her advice, senior counsel also requested and received approval from the trustees to obtain a theological opinion from Reverend Dr Gary Heard in respect of, among other things, the definition of primitive Christianity (‘Heard opinion’). The content and recommendations of the Batrouney advice and the Heard opinion are summarised in some detail later in these reasons.

The statutory framework

The trustees seek relief pursuant to the Rules and the Trustee Act. Rule 54.02 of the Rules provides as follows:

Order 54―Administration of estates and execution of trusts
…
54.02 Relief without general administration
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.

(2) Without limiting paragraph (1), a proceeding may be brought for—
(a)the determination of any question which could be determined in an administration proceeding, including any question—
(i)arising in the administration of an estate or in the execution of a trust;
(ii)as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or
(iii)as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust;

(b)       an order directing an executor, administrator or trustee to—
(i)        furnish and, if necessary, verify accounts;
(ii)       pay funds of the estate or trust into court; or
(iii)      do or abstain from doing any act;

(c) an order—
(i)approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.

Section 63 of the Trustee Act provides as follows:

63 Power of Court to authorize dealings with trust property
(1)Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument (if any) or by law, the Court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose on such terms and subject to such provisions and conditions (if any) as the Court thinks fit and may direct in what manner any money authorized to be expended, and the costs of any transaction are to be paid or borne as between capital and income.
(2)The Court may from time to time rescind or vary any order made under this section, or may make any new or further order.
(3)An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

Section 63A of the Trustee Act provides as follows:

63A Power of Court to vary trusts
(1)Where property, whether real or personal, is held on trusts arising, whether before or after the commencement of this Act, under any will settlement or other disposition, the Court may if it thinks fit by order approve on behalf of―
(a)any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by reason of minority or other incapacity is incapable of assenting; or
(b)any person (whether ascertained or not) who may become entitled, directly or indirectly, to an interest under the trusts as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person who would be of that description, or a member of that class (as the case may be) if the said date had fallen or the said event had happened at the date of the application to the Court; or
(c)any person unborn; or
(d)any person in respect of any discretionary interest of his under protective trusts where the interest of the principal beneficiary has not failed or determined—

any arrangement (by whomsoever proposed and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts, or enlarging the powers of the trustees or managing or administering any of the property subject to the trusts:
Provided that except by virtue of paragraph (d) of this subsection the Court shall not approve an arrangement on behalf of any person unless the carrying out thereof would be for the benefit of that person.
…
(3)Notice of an application to the Court for an order pursuant to subsection (1) of this section shall be given to such persons as the Court may direct.
…

The originating motion

The originating motion seeks answers to the following questions, along with further relief:

1.Whether, pursuant to clause (a) of the Trust Deed dated 1 November 1922 (the Trust Deed) establishing the Campbell Edwards Trust (the Trust), the Trustees are justified in devoting the funds of the Trust to one or more of the following purposes:
(a)       Hunger alleviation;
(b)       Physical shelter and refuge;
(c)       Respite care for children in need;
(d)Medical care for vulnerable, disabled, seriously ill and needy persons;

(e) Mental and spiritual help and support; and
(f)Education for needy and at-risk youth, including by supporting scholarship programs to private schools.

2.Further or in the alternative, whether, pursuant to clause (a) of the Trust Deed, the Trustees are justified in devoting the funds of the Trust to one or more of the following organisations:
(a)       Hunger alleviation
(i)        Fareshare;
(ii)       Secondbite; and
(iii)      Ozharvest.

(b)       Physical shelter and refuge
(i)        Lou’s Place;
(ii)       McAuley Community Services for Women;
(iii)      Wayside Chapel; and
(iv)     Stepping Stone House.

(c)       Respite care for children in need
(i)        Cottage by the Sea; and
(ii)       Mirabel Foundation
(d)Medical care for vulnerable, disabled, seriously ill and needy persons
(i)        Murdoch Children’s Research Institute;
(ii)       No Roads to Health;
(iii)      Royal Far West; and
(iv)     Chris O’Brien Lifehouse.

(e)       Mental and spiritual help and support
(i)        Prahran Mission of Uniting Church;
(ii)       Oasis Youth Support, Lifeline;
(iii)      Sacred Heart Mission;
(iv)     Wayside Chapel; and
(v)      Whitelion.
(f)Education for needy and at-risk youth, including by supporting scholarship programs to private schools

(i)        Aboriginal Literacy Foundation;
(ii)       Ardoch Youth Foundation; and
(iii)      Yalari Foundation.

3.Whether the Trustees are justified in applying the capital and income of the Trust to the purposes specified in clauses (a), (b) and (c) of the Trust Deed.
4.An order pursuant to section 63 of the Trustee Act 1958 (alternatively pursuant to section 63A of the Trustee Act 1958) that the Trust Deed be amended in the manner set out at pages 334 to 343 of Exhibit “JCE-1” to affidavit of James Campbell Edwards sworn on 9 December 2022, so that the operative trust deed is as set out in a form annexed to the Court’s orders.
5.An order that the plaintiff’s costs of this application be paid or reimbursed out of the funds of the Trust on an indemnity basis.

The evidence

The trustees relied upon the first trustee affidavit and the exhibits to that affidavit, as well as a supplementary affidavit of James Campbell Edwards dated 14 July 2023 (‘second trustee affidavit’).

The contents of the first trustee affidavit are summarised under the following subheadings, which correspond to the headings used in that affidavit.

The Trust

The first trustee affidavit recounted general background matters relating to the establishment, registration, objects and current net assets of the Trust, and identified the role and appointment dates of the current trustees of the Trust. In summary, the Trust has seven trustees, all of whom act in a voluntary capacity and spend a significant amount of time each year on Trust-related matters. Since the Trust’s inception, the majority of trustees have been relatives of the founder (including the first, third, fourth and fifth trustees, who are the founder’s great-grandchildren). The sixth and seventh trustees are not descendants of the founder.

Since its establishment, the Trust has distributed tens of millions of dollars in donations for charitable purposes in Australia which the trustees consider are consistent with the objects of the Trust. Some examples of charities which the Trust has supported through donations in recent years included Fareshare, Kids Under Cover and UNICEF.

The Trust Deed

The first trustee affidavit referred to the terms of the original Trust Deed and its variation on a number of occasions between 1924 and 1946. Exhibited to the first trustee affidavit were, among other things, the following documents:

(a) foolscap copies of the original Trust Deed and its variations and copy-type versions of these deeds; and

(b) copy-type versions of the deeds created in 2012 by the assistant of a former trustee, which are regularly consulted by the trustees in their conduct of the business of the Trust.

2017 proceeding and settlement

The trustee affidavit referred briefly to the 2017 proceeding and the terms by which the 2017 proceeding was resolved.

Advice received on interpretation of the Trust Deed

In the first trustee affidavit, Mr Edwards deposed as follows:

The Batrouney Advice noted that there were a number of issues regarding the meaning and effect of certain provisions of the Trust Deed and that the Trustees should apply to the Court for directions or declarations as to their meaning and effect. It also noted that there were certain provisions of the Trust Deed which might be addressed by an administrative scheme or court ordered variation.
The Batrouney Advice noted that there is no cause for the Court to apply a cy-pres …

Following their receipt of the Batrouney advice, the trustees have prepared amendments to the Trust Deed and have taken steps to initiate and progress the current application. This application has been delayed by various factors, including litigation regarding the costs of the 2017 proceeding.[8] There have also been a number of changes to the trustees of the Trust, including the resignations of two trustees in 2021 and the appointment of their replacements.
[8]Referring, in this regard to the decisions of Lyons J in Hopkins v Edwards [2020] VSC 456 and Hopkins v Edwards (No 2) [2020] VSC 698. The Attorney-General was an active party in the applications before Lyons J.

The trustees have now unanimously determined to apply to the Court seeking the relief set out in the originating motion pursuant to a trustees’ resolution to that effect dated 24 August 2022 (‘Trustees’ Resolution’).

Mr Edwards deposed that following the receipt of the Batrouney advice, additional advice was sought and received from Reverend Dr Heard on 6 October 2022.

Mr Edwards also deposed that, according to the Trustees’ Resolution, the trustees are of the unanimous opinion that:

(a)the Trustees find it impracticable to discover whether there are any other churches or congregations conforming strictly to the pattern defined in clause (a) of the Trust Deed;
(b)the purposes set out in paragraph 45 above [being the purposes identified in question 1 of the plaintiffs’ Originating Motion] are as near as they can find to the Spirit and purpose of the Trust;
(c)the organisations set out in paragraph 45 support purposes which are as near as they can find to the Spirit and purpose of the Trust.

The trustees also adopted a paper attached to the Trustees’ Resolution as setting out the views of the trustees on various matters (‘Board paper’), which discussed the issues facing the trustees at some length, and concluded that the above-mentioned purposes were consistent with the broader meaning of the spirit and purpose of the Trust.

Proposed amendments to the Trust Deed

Mr Edwards deposed as to the substance of and rationale for the proposed amendments to the Trust Deed, as follows:

The Trustees seek an amendment of Clause A.2 of the Trust Deed to increase the cap on donations that fall outside the main purposes of the Trust in the 1946 amendment from 15% to 30%. The Trustees consider that this will provide greater operational flexibility for Trustees especially given that:
(a)The general difficulty of giving effect to the original object (a), especially where a narrow interpretation of the Spirit and Purpose amendment is adopted; and
(b)The 1929 Variation (housing the needy in Trust property) is not available due to the fact that, unlike in 1929, the Trust has not owned property for many decades.

With respect to the other general amendments to the Trust Deed, these are generally required for administrative purposes to give greater confidence and clarity with respect to the meaning of certain parts of the Trust Deed. These are proposed in the interests of clarity and ease of operation, and are not intended to revisit the substantive purposes. Those amendments include the following:
(a)Clause (d) – clarifying that the Trustees may be nominated and appointed by a majority of Trustees;
(b)Clause (e) – clarifying that the Trustees may realise the Trust properties or any part or parts thereof and reinvest all moneys in any investment in which the Trustees are authorised by law to invest trust funds (including but not limited to securities, property or other assets);
(c)Clause (e) – providing the Trustees with a power to establish an investment committee (comprised of Trustees) to make investment recommendations;
(d)Clause (f) – providing that the Trust Deeds are to be available for reference at each meeting of the Trustees (as opposed to the current formulation, which requires the Trust Deeds to be “read over”);
(e)Clause B – the insertion of a new definition of the term “devote”. The Trust Deed does not currently include a definition of the term “devote”, as addressed in the advice of Jennifer Batrouney QC. The new definition seeks to clarify the meaning of the term.

…
In addition to the changes at the notice of meeting, two typographical errors have been amended (which are highlighted in the document):
(a)on page 339, the word “sane” in clause (a) has been amended to “same”; and
(b)on page 342, the word “Trustees” in clause (g)(3) has been amended to “Trustee”.

…

Correspondence with the Attorney-General

Mr Edwards deposed that the trustees’ solicitors wrote to the Attorney-General on 21 September 2022, enclosing copies of the draft originating motion, the draft amended Trust Deed and his draft affidavit in support of the trustees’ application.

On 22 June 2023 the Attorney-General’s solicitors wrote to the Court attaching correspondence advising of the Attorney-General’s position in respect of the current application, which stated as follows:

We are instructed by the Attorney-General to advise that she does not oppose the application for the relief sought by the Plaintiff and specifically the orders as set out in the Originating Motion filed with the Court on 3 April 2023.
Subject to any request by the Court for assistance, the Attorney-General does not propose to appear at the hearing or hearings or take an active part in the trial of the proceedings. Please advise us if any assistance is requested.

The second trustee affidavit

In the second trustee affidavit, Mr Edwards deposed that the second plaintiff, his father, Robin Campbell Edwards, one of the trustees and the treasurer of the Trust, passed away on 21 June 2023.[9] Mr Edwards deposed that the trustees do not intend to appoint a new trustee to replace Robin Campbell Edwards prior to the hearing of the trustee’s application in this Court on 27 July 2023.
[9]Robin Campbell Edwards was the grandson of the founder.

Legal advice and theological opinion received by the trustees

Given the centrality of the Batrouney advice and the Heard opinion to the issues in this proceeding, it is convenient at this point to provide a relatively detailed summary of those documents.

Batrouney advice

The Batrouney Advice responded to a large number of questions posed by the trustees in respect of the proper construction of the Trust Deed and the administration of the Trust.

The Batrouney advice was said by senior counsel to be based upon those documents with which she had been provided, and qualified to the extent that it would be affected by any other deeds, instruments, minutes of meetings of trustees, agreements or other actions and correspondence of which she was not aware.

The Batrouney advice relied upon the Heard opinion to the extent that senior counsel’s opinion concerned the charitable purpose of the cause of primitive Christianity and purposes near to the spirit and purpose of cl (a) of the Trust Deed as referred to in the 1946 proviso. Senior counsel also had regard to the Heard opinion as it concerned relevant historical matters concerning the founder and the causes he supported.

The thrust of the Heard opinion was summarised in the Batrouney advice as follows:

Rev Dr Heard recommends the adoption of a more principles-based or symbolic approach to construing the Founder’s intent to devote funds to primitive Christianity, rather than by application of the prescriptive elements set out at clause (a) [of the Trust Deed] – which Rev Dr Heard describes as having ‘proven to be an almost impossible task [for any church or group] to maintain’. A particular obstacle to strict adherence to the characteristics set out at clause (a) is, as Rev Dr Heard acknowledges, the fact that most ‘free churches’ have had to move towards a stipended ministry due to an environment of greater regulatory oversight of and impact on congregations of all churches.
Rev Dr Heard suggests that consideration should be given to whether a church has as its intent or goal the ‘recovery of primitive Christianity’, being what he describes as reflecting the primacy of the New Testament in the life of the church. Having regard to this broader or conceptual approach Rev Dr Heard has indicated that, of the contemporary mainstream denominational movements, the Churches of Christ, the Baptist Church and the Brethren Church adhere to principles similar to that of ‘primitive Christianity’.

The Batrouney advice observed that the trustees ‘may benefit from directly meeting with Rev Dr Heard to explore his analysis in more detail’, and that recommendation was subsequently accepted by the trustees, as discussed later in these reasons.

The Batrouney advice stated the general interpretive principles to which she had regard in informing her responses to each of the specified questions posed by the trustees. Applying these principles, and considering the provisions of the Trust Deed as a whole, the Batrouney advice went on to make the following general observations:

(a) assuming that ‘churches or congregations conforming strictly to the pattern defined’ in cl (a) of the Trust Deed could not be found following the 1946 Variation, the dispositive power in cl (a) (‘PROVIDED FURTHER …’) was discretionary, inasmuch as the trustees could unanimously decide to devote (or not devote) funds to one or more purposes ‘near as they can find to the Spirit and purpose of the present trust’;

(b) the 1946 proviso should be interpreted as a whole, so that the reference there to ‘the present trust’ is read as a reference to ‘the pattern defined in this clause’ (described by senior counsel as the ‘Narrow Purpose’):

To put it another way, in my opinion, the reference to ‘the present trust’ in clause (a) cannot sensibly mean the purposes set out in paragraphs (a), (b) and/or (c) but must be confined to the purposes referred to in the ‘definition’ referred to in paragraph (a).[10]
[10]The trustees disagree with this aspect of the Batrouney advice. I will return to this issue later in these reasons.

(c) it is open to the trustees to unanimously form the opinion that one or more purposes is or are ‘near’ to the ‘Spirit and purpose’ of the present Trust, but that one or more (or all) of those purposes are nevertheless not ‘sufficiently near’ to such definition (and, therefore, devote no funds to such purpose(s));

(d) subject to the trustees properly discharging their duty of due consideration, they might from time to time decide to devote no funds to a purpose, even if ‘sufficiently near’ to such definition as described in the Trust Deed;

(e) clause A.2 of the Trust Deed is the only reference to the trustees dealing with Trust income, suggesting that all other distributions may be of income and/or capital;

(f) also pursuant to cl A.2, the trustees are required to form a unanimous opinion from time to time about which charitable purposes the founder would wish to support under that clause; and

(g) although the Trust is a charitable trust, in senior counsel’s view, the specific requirement of a unanimous decision in cll (a) and A.2 of the Trust Deed overrides the common law principle that the trustees of a charitable trust may act by majority.

The Batrouney advice responded to the trustees’ questions concerning the interpretation of the Trust Deed in some detail. I note the following by way of overview:

(a) based on the Heard opinion, the Churches of Christ do not strictly satisfy all of the required elements of ‘primitive Christianity’ as set out in cl (a) of the Trust Deed, because:

Based on the views expressed by Rev Dr Heard, the Churches of Christ reflect certain key elements of the meaning of primitive Christianity, including as defined by clause (a) of the Current [Trust] Deed:
30.1.1voluntary confession of faith in Christ as a requirement for membership of the church;
30.1.2baptism of a believer by full immersion and the belief that baptism was necessary for forgiveness of sins;

30.1.3 weekly celebration of the Lord’s Supper;
30.1.4 the practice of a Sunday morning worship service; and
30.1.5 a church open to the voices of all its members.

However, according to Rev Dr Heard, the Churches of Christ began a movement towards ‘stipended ministry’ in the late nineteenth century, gaining momentum in the early twentieth century as the need for trained leaders was recognised. Though in its formative years, leaders of the Churches of Christ also rejected the notion of a full-time paid ministry, according to Rev Dr Heard, this changed within a short space of time and the needs of a professionalised ministry are now recognised.

although:
In seeking to determine an appropriate meaning to be given to the church or assembly of ‘primitive Christianity’, Rev Dr Heard focuses upon the ‘intention’ to restore primitive Christianity, rather than the strict ‘characteristics’ of primitive Christianity.

(b) having identified that the Churches of Christ satisfy many of the elements of primitive Christianity as contained in cl (a) of the Trust Deed, the Trustees are not obliged to devote funds to the Churches of Christ, but it would be open for them to do so if they unanimously agreed to so do:

Assuming that the Trustees have formed the view that there is no entity that strictly conforms to the definition of ‘primitive Christianity’ in clause (a), they must then consider whether there are ‘purposes which in their unanimous opinion are as near as they can find to the Spirit and purpose of the present trust.’ If such purposes are found, then the Trustees must (in my opinion) decide unanimously whether those ‘near’ purposes are ‘sufficiently near’ to the ‘pattern defined in’ clause (a). If the Trustees form the view that one or more purposes are ‘sufficiently near’ they must then consider whether or not to devote funds to that or those purpose(s). In my opinion, the Trustees are not obliged to make any payment to any such purpose but if it is decided to make a payment to any such a purpose – the Trustees must unanimously agree to do so.

(c) in senior counsel’s view, obtaining the Heard opinion constituted sufficient steps taken by the trustees to ascertain that it is impractical to discover whether there is any other church or assembly of believers strictly conforming to the definition of primitive Christianity contained in cl (a) of the Trust Deed;

(d) the Narrow Purpose was relevantly articulated as follows:

I understand this question (at 27(e)) is directed to whether the proviso inserted by the 1946 Variation refers only to the ‘Spirit and purpose’ of the trust set out at clause (a) – in connection with the cause of primitive Christianity (narrow purpose), or whether it encompasses a broader charitable purpose than one connected with the cause of primitive Christianity (broader purpose). In particular, the broader purposes are recognised under clauses (b), (c) and A.2 of the Current [Trust] Deed …
Application of the ‘narrow purpose’ would limit the operation of the proviso at clause (a) such that the ‘Spirit and purpose’ would require a connection with the cause of primitive Christianity. If the ‘broader purpose’ applies, the ‘Spirit and purpose’ of the trust may extend, for example, to any charitable purpose which the Trustees determine the Founder would wish to support at clause A.2.
The question must be answered having regard to the terms of the deed as a whole and with a view to making sense of the Founder’s objective intentions to give a reasonable meaning to the language without doing complete violence to it.
As I have foreshadowed … in my view the words, ‘the present trust’, are significant and indicate that it is the ‘trust’ confined to clause (a) – relating to the ‘cause of primitive Christianity’ – to which the expanded ‘Spirit and purpose’ scope is intended to apply and not any broader purpose – including the [Trust] as a whole.
The reference to the Trustees being the ‘final judges of whether or not such purposes are sufficiently near to such definition’ at the end of clause (a) also supports application of the ‘Spirit and purpose’ determination to the narrow purpose because of the defining of ‘primitive Christianity’ within clause (a).

(e) drawing on various sources of authority, including the notion of the ‘spirit of a gift’ in the application of a cy-près scheme, and the preamble to the Statute of Elizabeth,[11] senior counsel concluded that the words ‘Spirit and purpose of the present trust’ in cl (a) of the Trust Deed refer to the founder’s basic intention in establishing the Trust for the devotion of funds to the cause of primitive Christianity. In characterising that basic intention, the trustees should look for something as near as possible — but not necessarily of the same kind or class — to that described in the Trust Deed, noting the characteristics of the churches and congregations described in cl (a), all of which should be applied to inform the spirit and purpose of the trust as described in that cl (a);

(f) practical suggestions were made to ensure that the trustees appropriately discharged their duty to find purposes sufficiently near as they can find to the spirit and purpose of the present trust; and

(g) senior counsel canvassed various options open to the trustees in circumstances where they might not — despite sufficient efforts — be able to unanimously resolve the purpose for which funds should be devoted under cl (a) of the Trust Deed, including, among other things, applying to the Court for directions and advice.

[11]Statute of Charitable Uses 1601 43 Eliz I, c 4.

In relation to the questions raised by the trustees regarding the administration of the Trust, senior counsel opined that:

(a) while the matter is not free from doubt, the funds ‘devoted’ pursuant to cll (a), (b) and (c) of the Trust Deed are to be devoted with the intention that they be utilised in a particular way, while a direct donation (in accordance with cl A.2) may be made to a recipient for its general purposes without the imposition of a condition that the donation be utilised in a particular way;

(b) there is no prescribed or minimum expenditure required to be allocated by the trustees in respect of any of the purposes articulated in the Trust Deed in any given year; and

(c) in senior counsel’s opinion, the 15 percent cap in cl A.2 of the Trust Deed is only applicable to the direct donations referred to in that clause, and does not apply to amounts ‘devoted’ pursuant to cll (a), (b) and/or (c) of the Trust Deed.

In the Batrouney advice, senior counsel also opined that there is no cause for the Court to apply a cy-près scheme, stating:

In view of the breadth of the discretion given to the Trustees by the further ‘Spirit and purpose’ proviso – in my view it will be difficult to satisfy the Court that the terms of clause (a) of the [Trust] Deed cannot be carried out in accord with the fundamental intention of the Founder (which would take account of the further proviso inserted by the 1946 Variation). In effect, there is no cause for the Court to apply the ‘gift cy-pres’ because the Founder had inserted a provision by his 1946 Variation to effectively permit the Trustees themselves to apply the gift cy-pres and that they be the ‘final judges’.

The Batrouney advice then addressed the trustees’ questions regarding the management and administration of the Trust. These responses largely concerned administrative matters in respect of which the trustees had particular queries (such as, for example, whether it was permissible for the trustees to use Trust funds to memorialise the founder or other Trust benefactors), which are not relevant to the issues presently before the Court for determination.

Finally, the Batrouney advice addressed the trustees’ questions concerning making applications of the current kind to this Court. In that regard, senior counsel advised that all of the trustees’ questions concerning the proper construction of the Trust Deed are matters upon which the trustees may (and, in senior counsel’s opinion, should) seek curial advice and direction.

The Batrouney Advice concluded by recommending that the trustees make an application to the Court, stating as follows:

In my opinion there are significant issues of uncertainty in the interpretation of the [Trust Deed] affecting the application of the funds for the charitable purposes as intended by the Founder. There are also difficulties with aspects of the management and administration of the [Trust] due to some of the restrictions inherent in the [Trust Deed].

Heard opinion

As earlier indicated, upon the recommendation of senior counsel, the trustees engaged Reverend Dr Heard to provide senior counsel and the trustees with an expert opinion regarding, among other things, the meaning of primitive Christianity.

Reverend Dr Gary Heard, at the time he provided his opinion, was the Academic Dean of Trinity College Theological School of the University of Divinity in Parkville. He holds a number of leadership and teaching positions with both the college and the university.

Reverend Dr Heard’s opinion followed three key lines of inquiry, being;

(a) the origins and development of the notion of primitive Christianity, particularly in the context of the period in which the Trust was established;

(b) the founder himself, his role in the Christian church and his contribution to it; and

(c) the development of the Churches of Christ movement, and its relationship to (a) and (b) above.

As for the question of whether the term ‘primitive Christianity’ had an accepted or well-understood meaning when the Trust was established in 1922, Reverend Dr Heard stated as follows:

Almost every denomination came into existence with a form of remit which sought to recover what it understood as the New Testament church. The Churches of Christ movement was no different. The term ‘primitive Christianity’ was also associated with an offshoot of the Methodist Church around the same time as the formative movements towards the Churches of Christ (originally known as the Disciples of Christ) began. There is some connection between the two movements. The Anabaptists and Quakers are also noted as working for a revival of primitive Christianity, as examples of a wider group. The founders of the Churches of Christ argued for ‘a return to the faith and practice of the Church as founded and perfected by the Apostles of our Lord[‘].

Reverend Dr Heard was asked whether any of the key characteristics described in cl (a) of the Trust Deed were considered to be the fundamental features of primitive Christianity in 1922, and responded as follows:

(a) ‘the Church as it was in its beginning’:

The notion that there was a single New Testament Church has long been considered erroneous, and has largely been held in the ideal. However, this did not prohibit the claim or ideal as the goal of any particular church movement. This claim was generally a call to return to the New Testament as the guide for understanding church life.

(b) ‘the church or assembly of believers having been immersed in water in the name of the Father, Son and Holy Spirit for remission of their sins’:

This was an important theological distinction in the Church of Christ movement, incorporating two elements: the baptism of a believer by full immersion, and the belief that baptism was necessary for forgiveness of sins. While the latter is not unique to the Church of Christ movement, it was a defining characteristic. No person would be accepted into membership unless having been baptised as a believer. This distinguished the Churches of Christ from the Baptist movement where this requirement was not universal. Another distinction was that Baptists did not believe that baptism brought remission of sins, but was rather regarded as a symbol of the change which took place, and a visual demonstration of the work of Christ in a person’s life.

(c) ‘the church or assembly of believers meeting every first day in the week to remember their Lord in the partaking of the bread and wine memorial of his body and blood’:

While most churches gather on the first day of the week – commemorating the resurrection of Jesus (as opposed to the Sabbath), the weekly celebration of the Lord’s Supper (also known as communion), was characteristic of the movement.

(d) ‘the church or assembly of believers edifying each other in psalms and hymns and spiritual songs mutual exhortation and teaching in which no salaried officer or paid preacher or teacher shall take part (except on occasions of not more than one first day out of every four and then only on the same standing as the other member of the church or assembly) PROVIDED HOWEVER that a teacher may be supported by three or more Churches jointly for the purpose of training the members to act as preachers teachers or missionaries’:

The movement towards a stipended ministry in the Churches of Christ began in the late 19^th Century, and gained further momentum in the early twentieth century as the movement recognised the need for trained leaders.
…
In the formative years of the movement its leaders rejected the notion of a full-time paid ministry, however this position changed within a short space of time, originally filling the role of evangelists (church planters) – a largely itinerant role. In an environment where there is greater regulatory oversight of and impact on congregations of all churches, the needs of a professionalised ministry are recognised.

Reverend Dr Heard was asked whether there was a contemporary accepted meaning of primitive Christianity which differed from that which was described and summarised above, to which he responded:

Not really. There is considerable academic effort to understand the context of the early church and its development, but the notion that there is a single primitive Christianity to be recovered is held only by a few on the margins. The call serves to function in a symbolic way.

Reverend Dr Heard was asked whether he was aware of any church, assembly or religious movement having all key characteristics described in cl (a) of the Trust Deed (or one as near as possible to such definition or characterisation, either today or at any time since 1922). The question was essentially answered in the negative:

It might be helpful to make the distinction at this point between “having all the characteristics” and “having the intention”. Regarding “the recovery of primitive Christianity” as a goal could well be interpreted to reflect the primacy of the New Testament in the life of the church in understanding its purpose and form. … However, the move towards a professional ministry has been evident in all mainstream denominations … Any churches which meet all the criteria as outlined above are more likely to be splinter groups and those early in formation.
Roper notes … the drift in the Churches of Christ, even as he identifies some small splinter groups which, for him, show a continuing commitment to the cause. One suspects that the groups he identified had a short life span.
In 1952, in an address to the World Convention of the Churches of Christ, E. Lyall Williams referred to the purpose of the Churches of Christ as to [‘]restore primitive Christianity’, largely out of recognition of its impossibility for a single church to do so in isolation of other churches.
The Churches of Christ Australia describe themselves today as:
‘… “people of the Book”. They believed that “restoring” the New Testament Church and stripping away the accumulation of traditions that had brought about division could achieve unity … We are sometimes referred to as the “Restoration Movement”. …

All of which is to suggest that the call of restoration based on the New Testament still remains a crux interpretum for the life of the Churches of Christ, albeit in recognition of the complexity and contextual challenges of the task.
Given that there are literally thousands of Christian denominations in existence in the world today, it is theoretically possible, but largely impractical to evaluate them all to discern which might strictly conform to the definition.

And later:
The term [‘primitive Christianity’] is so vague and historically imprecise that it cannot be interpreted without reference to the Churches of Christ context in which Edwards [i.e. the Founder] was formed and deeply committed. Given Edwards’ unsophisticated theological background, his use of the term should be assumed to reflect this context.

And:
While I am not personally aware of, or able [to] identify any such groups [of primitive Christianity today, as the term was understood in 1922 and currently], it is possible that they do exist. Whether it is feasible to identify them is another question.

Reverend Dr Heard was then asked to opine on when such churches, assemblies and religious movements of ‘primitive Christianity’ ceased to exist, and responded as follows:

While it might be arguable that there were movements that conformed to the definition [of primitive Christianity] at the outset … it has proven to be an almost impossible task to maintain.
…
There is a noted shift in the focus of the Churches of Christ over the course of the last century.
…
Less than 100 years later, Richard Hamm, outlining a vision for the Churches of Christ movement in the US does not mention the call for restoration [of primitive Christianity].
Gordon Stirling interpreted this call in an Australian context in his book The Restoration of New Testament Christianity in the following way:
…

New Testament Christianity was contemporary Christianity in the first century. An exact literal transplant of it to the twenty-first century would wither and die.
Twenty years earlier, E. Lyall Williams, a leading thinker in the churches of Christ in Australia maintained that the following characteristics remained central to Churches of Christ identity:
–        Rejection of creeds: “No creed but Christ”
–        Catholicity of the Church – towards unity
–        Authority of the scriptures
–        Principle of Liberty.
–        A Church of Baptised believers only.
–Threefold leadership in the local church: Elders/Bishops, Evangelists, and Deacons.

– Two ordinances: Baptism and the Lord’s Supper.
–A restoration movement, by which is meant restoration of New Testament Christianity, both in terms of dynamics and not only the forms of Christianity.

Reverend Dr Heard also noted that, as for churches, assemblies or religious movements that might be similar to or likened to institutions of primitive Christianity the Quaker movement might remain the closest, ‘though not in every expression’. There might also be some small communities living according to historic practices which conform with primitive Christianity, ‘but none of note in Australia’.

In light of the 1946 variation and its effect upon the Trust Deed’s terms, Reverend Dr Heard was asked whether there had been a change in churches and assemblies having all the characteristics contained in cl (a) of the Trust Deed in the period between 1922 and 1946. He did not answer this question in precise terms, but referred to the impact of the Great Depression and Second World War upon the Churches of Christ movement generally and its ability to pay ministers as had by then become customary, although the practice of paying ministers resumed again as the economy recovered.

Reverend Dr Heard was asked about the kinds of churches and congregations in 1946 which might not have been viewed as conforming strictly to the characteristics set out in cl (a) of the Trust Deed, but which might nevertheless be taken to adhere to similar principles. He responded as follows:

Of the mainstream denominational movements, the three closest would be the Churches of Christ, the Baptist Churches and the Brethren churches. … Brethren Churches have operated on similar principles to the Churches of Christ, with a movement towards a professional ministry over the last 25 years. Some evangelical free churches may also meet most criteria, and congregations have been associated with one another. Another key defining factor of the Churches of Christ movement, as with others noted here, is the autonomy of the local congregation and the lack of ability of the denominational office to direct the ministry of the local church.

Reverend Dr Heard was asked whether there was any basis upon which the Churches of Christ in Australia might be described as churches, assemblies or religious movements of primitive Christianity (either today, or at any time since 1922), to which he responded as follows:

The Churches of Christ movement/denomination has ‘persistently refused to formulate its beliefs and practices in a written creed or confession’. It emerged in the first decades of the 19^th century, modelled largely on the model of the early Methodist societies …
The term used by the founders of the movement at the outset was ‘original Christianity’ which represented a revival of the faith, devotion and zeal of the New Testament Church …
The call to return to ‘primitive, apostolic Christianity’ resonated throughout the formative years of the Churches of Christ movement in Australia in the 19^th century …

Reverend Dr Heard said there was no public register, database or other resource in existence which it would be possible to discover or identify churches, assemblies or religious movements falling from time to time within the definition of primitive Christianity.

Reverend Dr Heard was asked to comment on the religious involvement of the founder, particularly in the period leading up to the establishment of the Trust and its amendment via the 1946 variation. He responded as follows:

[The founder] was the most significant financial benefactor to the Churches of Christ in the early part of the 20^th century. … [The founder] is not acknowledged in Churches of Christ histories for any significant theological contribution.

Reverend Dr Heard was also asked to indicate any churches, assemblies or religious movements to which (according to his research and knowledge) the founder would have likely been to be opposed to supporting. He responded as follows:

Given Edwards’ commitment to the Churches of Christ, it would be unlikely that he would support endeavours of the ‘established churches’. Given the time it is reasonable to assume that he would oppose funding of any state churches, or Catholic institutions, given his alignment towards the free evangelical flavour of the Churches of Christ. These sectarian divides were strong during his lifetime. One further factor in determining likely opposition by Edwards would be a church which is subject to an hierarchical authority, rather than the decision-making authority residing in the local congregation.
Given the lack of acknowledgement of any significant theological contribution, it is reasonable to assume that the depiction of ‘primitive Christianity’ was an effort to underpin and reinforce the founding and historical principles on which the Churches of Christ were founded.

In the Batrouney advice, senior counsel suggested that the trustees meet with Reverend Dr Heard to discuss his analysis and opinion, and did so, holding a video conference with Reverend Dr Heard in September 2020, following which Robin Campbell Edwards (the second plaintiff, now deceased) wrote to Reverend Dr Heard as follows:

You mentioned on our call finding the true ‘spark’ or essence of primitive Christianity. This is important to us in understanding what Robert might have meant when he amended the Trust Deed in 1946 to modify original object (a), with reference to its ‘spirit and purpose’. In our conference you suggested that, today, it is not so much about ‘getting people physically into in Church buildings’, but more about the social aspects of reaching out to people by connecting communities, promoting universal social values and assisting with people’s physical and material welfare.
Having read up a little further about giving in the Wesleyan tradition, it seems that the concept of giving to the ‘poor’ is central to the primitive Christian world view, the ability to give itself being a gift from God. I understand, though am not an expert, that Methodism emphasises the virtue of charity and support for the sick, the poor and the afflicted through ’works of mercy’.
Further, I understand that the ‘Social Gospel’, a movement in Protestantism applied Christian ethics to social problems, such as economic inequality, poverty, alcoholism, crime, racial tensions, slums, unclean environments, child labour, lack of unionization, poor schools and the dangers of war. The Social Gospel is said to be put into practice by the establishment of hospitals, orphanages, soup kitchens and schools to follow Christ's command to spread gospel and serve all people.

Reverend Dr Heard responded on 6 October 2020, as follows:

Robert was a man of his times in many important ways. Consider the state of the world and Australia through the first decades of the 20th century - a nation under construction economically and socially, impacted by the significant recession of the 1890s, through nationhood into a World War, then the depression and a second world war. These were times which caused much hardship for large sections of the Australian community. Robert's understanding of the gospel call to care for the poor, the widow, the orphan is dramatically depicted in his work and legacy. It was an outworking of his understanding of the gospel call upon his life, and upon the church. Robert was seeking to build the nation as he could, to reflect the gospel priorities.

As for the proposed amendments to the Trust Deed, there are two amendments of material significance: first, the amendment to lift the cap on donations in cl A.2 of the Trust Deed from 15 percent to 30 percent of the income of the Trust, and secondly the insertion of a definition of ‘devote’, as follows:

In this Deed, the term “devote” includes:
(1) applying the funds for the specified purpose or purposes; and/or
(2)making donations (with or without conditions attached to the use of the donations).

Given my findings about what purposes are consistent with the spirit and purpose of the present Trust, the lifting of the cap in cl A.2 of the Trust Deed will have the effect of providing of the trustees with greater flexibility as to how they deploy their funds. To explain further, cl A.2 currently empowers the trustees to devote up to 15 percent of the Trust’s annual income to any charitable purpose that the trustees consider that the founder would wish to support. I expect, given the evidence about the types of organisations that the Trust was making donations to at the time of the founder’s death in 1946, that the range of charitable purposes that the founder may have wished to support may well be broader than the cause of primitive Christianity, support for children in need and the alleviation of homelessness.

Accordingly, while lifting the cap will provide the trustees with greater operational flexibility, and thus will be ‘expedient’, it will also provide the trustees with greater flexibility regarding the destination of the funds they devote to charitable purposes. In particular, it will permit the trustees to continue supporting organisations that they have supported in recent years which may not fall within the spirit and purpose of the present trust as found by me, provided that the trustees unanimously form the view that the founder would have support that charitable purpose.

In my view, it is expedient for the management and administration of the Trust to, in effect, expand the discretionary powers of the trustees. First, given that it is clear from the opinion of Reverend Dr Heard and the deliberations of the trustees themselves that the trustees have formed the view that it is impractical to identify churches or congregations that comply with the requirements in cl (a) of the Trust Deed, the flexibility conferred by cl A.2 of the Trust Deed will be hamstrung by a low cap. Secondly, I expect that the trustees would wish to avoid being forced to suddenly withdraw funding support from organisations which do not fall within the purposes identified in cll (a), (b), (c) and A.4 of the Trust Deed, and the raising of the cap will enable a smoother transition should my findings regarding the proper construction of the Trust Deed require a shift in the funding patterns of the Trust.

As for the insertion of the definition of the term ‘devote’ to make it clear that the devotion of funds by the Trust encompasses making donations to external organisations, the proposed amendment addresses the opinion in the Batrouney advice to the effect that the meaning of the term ‘devote the funds of the Trust to’ empowers the Trust to directly provide goods and services to advance the religious and charitable purposes of the Trust, but does not necessarily empower the trustees to make donations to organisations which themselves provide goods and services consistent with the spirit and purpose of the Trust. However, it is apparent from the evidence that the Trust is not a service providing organisation, and it is probably not well-equipped organisationally to embark upon service provision. Accordingly, the expanded definition of ‘devote’ is expedient, in that it confirms (given that I agree with the Batrouney advice that there is scope for doubt) that the Trust is able to pursue its religious and charitable purposes by making direct donations to third party organisations, rather than by confronting the organisational and possibly regulatory hurdles involved in providing, say, children’s services and/or accommodation and support for homeless people.

Accordingly, the trustees’ proposed amendments will be allowed.

Given my findings concerning what charitable purposes fall within the spirit and purpose of the present Trust, in addition to answering the questions posed by the trustees in the originating motion, I will grant the trustees liberty to apply to amend the originating motion to ask whether certain charitable purposes fall within the scope of cl A.2, being charitable purposes which the trustees considered the founder would have supported, if they choose to do so. It seems that that the trustees have access to a wealth of information about the historical activities and beneficiaries of the Trust, and may well be able to formulate a list of additional purposes of contemporary relevance based upon the activities of and donations made by the Trust during the founder’s lifetime.

Finally, as for the question of costs, there is no feature of the current application which would cause me to depart from the usual practice in applications of the current kind: that is, to permit the trustees to recover their costs of and incidental to the proceeding on an indemnity basis. Orders will also be made for the payment of the Attorney-General’s costs on a standard basis.

Annexure A – Consolidated Trust Deed showing trustees’ proposed amendments

SCHEDULE OF PARTIES

S ECI 2023 01322
BETWEEN:
JAMES CAMPBELL EDWARDS (in his capacity as Trustee of the Campbell Edwards Trust)	First Plaintiff
ROBIN CAMPBELL EDWARDS (in his capacity as Trustee of the Campbell Edwards Trust)	Second Plaintiff
ANDREW CAMPBELL EDWARDS (in his capacity as Trustee of the Campbell Edwards Trust)	Third Plaintiff
KATHERINE CAMPBELL EDWARDS (in her capacity as Trustee of the Campbell Edwards Trust)	Fourth Plaintiff
AMANDA LOUISE HOPKINS (in her capacity as Trustee of the Campbell Edwards Trust)	Fifth Plaintiff
CHRISTOPHER WOOTTON (in his capacity as Trustee of the Campbell Edwards Trust)	Sixth Plaintiff
CHRISTOPHER WOOTTON (in his capacity as Trustee of the Campbell Edwards Trust)	Seventh Plaintiff
CAMPBELL EDWARDS NOMINEES PTY LTD (ACN 005 495 705) (in its capacity as [Custodian] Trustee of the Campbell Edwards Trust)	Eighth Plaintiff
- v -
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Defendant

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Edwards v Attorney-General for the State of Victoria [2023] VSC 569

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22 September 2023