University of Melbourne v Attorney-General of Victoria
[2005] VSC 92
•4 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7913 of 2003
IN THE MATTER OF THE JOHN AND ERIC SMYTH TRAVELLING SCHOLARSHIP
and
IN THE MATTER OF an application for advice from the Court pursuant to Order 54.02
of the Rules of the Supreme Court
| THE UNIVERSITY OF MELBOURNE (as Trustee of The John and Eric Smyth Travelling Scholarship) | Plaintiff |
| v | |
| THE ATTORNEY-GENERAL OF VICTORIA | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 JANUARY 2005 | |
DATE OF JUDGMENT: | 4 APRIL 2005 | |
CASE MAY BE CITED AS: | THE UNIVERSITY OF MELBOURNE v THE ATTORNEY-GENERAL OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 92 | |
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Wills – Construction of will establishing a travelling scholarship – Whether certain of the criteria for eligibility for the scholarship were to be read cumulatively or as alternatives – Whether a reference to a secondary teaching qualification which was no longer offered by the University should be read as a reference to any teaching qualification offered by the University or to the teaching qualification offered by the University that had taken the place of that secondary teaching qualification.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E. Woodward | Legal Services, The University of Melbourne |
| For the Defendant | Mr H. McArdle (Solicitor) | James Syme, Victorian Government Solicitor |
HIS HONOUR:
The Application
By its originating motion filed on 7 April 2004 the plaintiff, the University of Melbourne (as trustee of the John and Eric Smyth Travelling Scholarship), sought the determination by the Court of two questions concerning the construction of the Will of the late John Smyth. The application was brought pursuant to r.54.02 of the Supreme Court (General Civil Procedure) Rules 1996. The defendant was the Attorney-General of the State of Victoria.
After some minor amendments to the wording of the questions made at the request of the plaintiff at the commencement of the hearing, the two issues raised for determination read as follows:
"1.An order determining whether clause 4 of the Schedule to the Will of the late John Smyth, dated 18 October 1926 (the 'Will') should be construed according to:
(a)the first construction as set out under paragraph 10(a) of the affidavit of David Rowland Percival in support of this application (the 'Percival Affidavit');
(b)the second construction as set out under paragraph 10(b) of the Percival Affidavit; or
(c)some other and, if so, what, construction?
2. Having regard to the fact that:
(i)at the time Professor Smyth made the Will and at the time of his death, the Diploma of Education of the Melbourne University was the only teaching qualification on offer with the University and was exclusively a secondary teaching qualification;
(ii)the Diploma of Education of the Melbourne University is no longer offered within the University, which now offers a wider range of teaching qualifications covering early childhood (kindergarten) primary and secondary qualifications,
an order determining whether the 'Diploma of Education of Melbourne University' in clause 4 of the Will should be read as referring to:
(a)any teaching qualification offered by the University of Melbourne;
(b)the teaching qualification offered by the University of Melbourne that has taken the place of that particular secondary teaching qualification; or
(c)some other and, if so, what qualification or qualifications?"
The Will
The late John Smyth ("the testator") was the foundation Professor of Education in the University of Melbourne ("the University"). He died in 1928 leaving a will dated 18 October 1926 ("the Will"). By his Will the testator endowed a travelling scholarship for teachers to be called "the John and Eric Smyth Travelling Scholarship" ("the Scholarship"). He stated the following in a passage in his Will:
"Valuing education honouring the profession to which I belong believing in the uplifting power of the school in modern society believing that the teacher should be better trained and that the school will do more for the individual and the state when he is better trained and knowing the benefits of study observation and research in other lands I hereby direct my said Trustees in manner aforesaid to transfer the said residuary investments to found a Travelling Scholarship for Teachers I have done much study abroad myself but I was never helped by a Scholarship I was however placed in a position where I was able to save and my wife and I by living carefully saved a considerable sum for our old age which is now represented by the said residuary investments and is dedicated in manner aforesaid to this special purpose."
The terms of the Scholarship were prescribed by the testator in a schedule to the Will. The following clauses of the schedule seem to me to be the relevant ones for present purposes:
"4.The Scholarship to be awarded to the best candidate under thirty years of age who holds a degree of the Melbourne University who holds the Diploma of Education of the Melbourne University who has shown skill as a teacher or lecturer who has displayed ability in experiment or research in the field of Education or who holds the Master's Degree in Education of the University of Melbourne and who in the opinion of the Trustees will be able to enrich the teaching profession and the work of the school by study abroad.
5.The Trustees to determine whether it should be awarded to a student who has just completed the Diploma course or to one who has had some experience in teaching or lecturing.
6.The holder to spend the term of his Scholarship in some country across the sea either studying education and allied subjects at a University or studying educational systems at work or studying any subject or problem which in the opinion of the Trustees is directly related to the work of the teacher or which will help in the advance of education. In every case he or she will take a degree abroad or write a work or report which will be of value.
7.The Scholarship may be awarded to the same candidate for a second period but no holder to enjoy it more than two years. …
9.Every winner of a John and Eric Smyth Scholarship to be told that he or she is indebted for it and all the privileges and benefits which will flow from it to the First Professor of Education of the Melbourne University who commenced his teaching career in a country school in New Zealand who by his own efforts gained for himself a University education in Dunedin and thereafter when married studied in Scotland and in Germany who was for over twenty five years Principal of the Teachers College Melbourne for seventeen years Lecturer in Education of the University of Melbourne and was for over eight years Professor of Education who in the course of his career visited Japan and North America and who for over twenty years was enabled by the help of his wife to save the money to found this Scholarship who did this because he believed in culture in right education in the place and power of the school in the advance of humanity and because he desired the teacher to possess a scientific knowledge a professional skill a philosophic outlook and a moral and religious fervour equal to those possessed by the best of any profession.
…
I desire that the Chancellor of the University so inform the winner in every case and ask the winner in the donor's name to remember the fund when he succeeds in his profession and that he early or late in such success send a contribution to the fund and so perpetuate the spirit which originated the fund Such contributions to be added to the original fund …
It is hoped that in this way a considerable number of scholarships will be available for the ablest and most ambitious members of the teaching profession.
10.The holder to be either a State School teacher or a Private School teacher and at least one out of five awards be given to a Private School teacher but this is only a general direction and not binding on the Trustees. I desire the good of education and not merely the good of one particular class of school. The scholarship may be held in conjunction with another or others if the Trustees so allow. It is to be understood throughout that the candidates and holders may be of either sex."
The Approach to Construction of the Will
Mr Woodward of counsel, who appeared on behalf of the plaintiff, submitted that although there was no need for the Court to determine whether the testator had a general charitable intent, the bequest having vested in charity many years ago, the principles applied by the courts in construing the terms of a will or trust in order to ascertain whether a general charitable intent was shown, were of assistance in answering the particular questions of construction asked in this proceeding.
Mr Woodward submitted that this approach to construction was best expressed in the following passage from Tudor on Charities:
"The overriding principle of construction in relation to gifts to charity is that a benignant approach is taken. In certain circumstances, extrinsic evidence is admissible to assist in the construction of charitable gifts …"[1]
[1]9th Ed. Sweet & Maxwell 2003 at p.175, para.4-001. See also Halsbury's Laws of Australia at [75-20].
As a more general principle, in Roddy v Fitzgerald[2] Lord Wensleydale explained the task of a court in construing a will in the following words:
"The first duty of the court expounding the will is to ascertain what is the meaning of the words used by the testator. It is very often said that the intention of the testator is to be the guide; but the expression is capable of being misunderstood, and may lead to a speculation as to what the testator may be supposed to have intended to write, whereas the only and proper inquiry is, 'What is the meaning of that which he has actually written?' That which he has written is to be construed by every part being taken into consideration according to its grammatical construction, and the ordinary acceptance of the words used, with the assistance of such parol evidence of the surrounding circumstances as is admissible to place the court in the position of the testator."
[2](1858) 6 HL Cas 823 at 876
In respect of what evidence was admissible to explain latent ambiguity Mr Woodward drew attention to the reliance in Tudor on Charities[3], on what Lord Lyndhurst said in Shore v Wilson[4]:
"If … the terms which are made use of are obscure, doubtful, or equivocal, either in themselves or in the application of them, it then becomes the duty of the Court to ascertain by evidence, as well as it is able, what was the intent of the founder of the charity, in what sense the particular expressions were used."
[3]9th Ed. Sweet & Maxwell 2003 at p.178, para. 4-006
[4](1842) 9 Cl & F 355 at 390
Mr Woodward submitted that although some reservation has been expressed over the width of Lord Lyndhurst's statement in Shore v Wilson[5] by, for example, Sir Robert Megarry VC in Re Atkinson's Will Trusts[6] nevertheless the learned Vice-Chancellor accepted that evidence might be adduced of the surrounding circumstances in which a will was made, or of the habitual sense in which a testator used particular words.[7]
[5](1842) 9 Cl & F 355
[6][1978] 1 WLR 586 at 589
[7][1978] 1 WLR 586 at 590
Mr Woodward submitted that an example of the approach taken in Victoria, to a problem similar to the present one, was to be found in Sandhurst and Northern District Trustees Executors and Agency Company Limited v Pitt[8]. In that case, Smith J was concerned with a bequest "for such person or persons institution or institutions corporation or corporations charitable and church purposes" as the testator's wife should appoint. Two views were put as to the meaning of the words. One was that they meant "charitable church purposes" or, in other words, "church purposes which are also charitable"; and the other was that they meant "charitable purposes and church purposes". His Honour approached the issue as a simple matter of construction and ultimately preferred the latter interpretation. He held that:
"It follows from what I have said that in my view it would not be in accordance with the intention disclosed by the testator's language to construe any of the words in the list of objects in a restricted sense by reason of the inclusion in the list of any of the other objects therein specified. The language described in each object should, in my opinion, be construed in accordance with its ordinary and natural meaning and should not be read down in order to avoid overlapping or upon any principle of expressio unius. There is, indeed, so much obvious overlapping that to eliminate it would be impossible except by a most strained and unnatural reading."[9]
[8][1958] VR 310
[9][1958] VR 310 at 313
Reference was also made to the more recent decision of Parker J of the Supreme Court of Western Australian in Boranga v Flintoff[10]. In that case, his Honour was faced with a question of construction of a trust deed that appointed a husband and wife as trustees and "the children of" the husband and wife as within the specified income class and "their children" as within the specified capital class. The plaintiff, who was the only child of both the husband and wife, contended that the phrases "their children" and "the children of" meant only children of both husband and wife and did not include the children of the wife's previous marriage.
[10](1997) 19 WAR 1
In rejecting that contention, his Honour concluded that the phrases in the deed before him were ambiguous and therefore should be constructed in accordance with the accepted principles applicable where phrases were ambiguous. He found that, in the circumstances of the case before him, it was appropriate to have regard to the surrounding circumstances, or mutually known facts, to ascertain the meaning of the phrases used to identify the classes of beneficiaries. Among other things, he took into account the fact that at the time of the deed, the husband and wife were, respectively, 70 and 63 years old, so it would have been virtually impossible for them to have had another child together naturally. He considered that the use of the plural when the couple had only one child together was a relevant factor:
"The only way to interpret the phrases consistent with the use of the plural, in the circumstances of this case, is that it was the intention of the parties to include the child of their union as well as the children of [the wife's] first marriage."[11]
[11](1997) 19 WAR 1 at 5
Parker J stated that he had reached this view on construction of the phrases in the deed "having had regard to the circumstances at the time the deed was entered into".[12]
[12](1997) 19 WAR 1 at 6
The Relevant Surrounding Circumstances
As Mr Woodward submitted, the relevant surrounding circumstances are, for the most part, apparent from the Will itself. However, the application was supported by an affidavit by David Rowland Percival, the Vice-Principal and Chief Financial Officer of the University, sworn on 5 April 2004 and filed on 3 September 2004. Mr Percival referred to the conflicting views held by the University staff responsible for the administration of the Scholarship concerning the construction of that part of the Will which set out the criteria for eligibility for the Scholarship.
According to Mr Percival, on 25 October 1975 the University Council had amended Regulation 6.71 which governed the administration of the Scholarship. Section 3 of Regulation 6.71 then read:
"3.The scholarship shall be awarded to the candidate who, in the opinion of the selection committee, best fulfils the following conditions –
(a) is under thirty years of age;
(b)holds a degree and a diploma of Education of the University;
(c) has been a teacher in a state or private school;
(d) has shown skill as a teacher or lecturer;
(e)has either displayed ability in experiment or research in the field of education or holds the degree of master of Education of the University;
(f)will be able to enrich the teaching profession by study abroad:
Provided that the selection committee shall have power to recommend a candidate who has just completed the course for the diploma of Education."
This wording of the Regulation exemplifies what Mr Woodward described as the "cumulative" construction. Under this construction, in order to be eligible a candidate will:
(a) be under thirty years of age; and
(b) (i) hold a Degree of the University; and
(ii) hold a Diploma of Education of the University; and
(iii) have shown skill as a teacher or lecturer; and
(iv)have displayed ability in experiment or research in the field of Eduction or hold the Degree in Education of the University; and
(c)be able to enrich the teaching profession and the work of the school by study abroad.
Mr Percival stated that in the years leading up to 1996, the University was having increasing difficulty in identifying candidates who qualified for the award of the Scholarship. Accordingly, following advice from its solicitors, on 2 December 1996 the University Council substituted a new Regulation 6.71. Sections 3 and 4 of the new Regulations read as follows:
"3. The scholarship is awarded to the best candidate who –
(a) is a teacher in a state or private school; and
(b)is under 30 years of age as at the closing date for applications as advertised in the press; and
(c) (i) (1) holds a degree of the University; or
(2)holds a diploma of Education of the University; or
(3)holds the degree of bachelor of Education of the University; or
(4)holds the degree of bachelor of Teaching of the University; or
(5)holds the master's degree in Education of the University; or
(6)holds any other degree in Education which the University may confer from time to time and which, in the opinion of the selection committee, is substantially similar to at least one of the qualifications in (i)(2) to (i)(5); or
(ii) has shown skill as a teacher or lecturer; or
(iii)has displayed ability in experiment or research in the field of Education; and
(d)will, in the opinion of the selection committee, be able to enrich the teaching profession and the work of the school by study abroad.
4.Despite paragraph (a) of section 3, the selection committee has power to recommend that the scholarship be awarded to a candidate who has just completed one of the degrees or diplomas referred to in paragraphs 3(c)(i)(2) to 3(c)(i)(6) above or to one who has had some experience in teaching or lecturing."
This wording of the Regulation exemplifies what Mr Woodward described as the "alternatives" construction. Under this construction, in order to be eligible a candidate will:
(a) be under thirty years of age; and
(b) (i) hold a degree of the University; or
(ii) hold a diploma of Education of the University; or
(iii) have shown skill as a teacher or lecturer; or
(iv)have displayed ability in experiment or research in the field of Education; or
(v) hold the Master's Degree in Education of the University; and
(c)be able to enrich the teaching profession and the work of the school by study abroad.
It would appear, however, that further legal advice resulted in the University making this application.
Mr Percival also deposed that in 1926 when the testator made his will (and at the time of his death in 1928) the Diploma of Education was the only teaching qualification awarded by the University, and that it was exclusively a secondary teaching qualification. Today, Mr Percival said, the Diploma of Education was no longer awarded by the University. Instead, the University now offered the following degrees and diplomas providing qualification as a teacher at early childhood, primary and secondary level. First, there was the Bachelor of Eduction (Primary), which was introduced in 1992. It provided a primary teaching qualification. This degree had replaced the Bachelor of Education, which had been introduced in 1936 as both a primary and secondary teaching qualification. Secondly, there was the Graduate Diploma in Education, which was introduced in 1974. It was a one year course providing a secondary teaching qualification. Next, there was the Bachelor of Early Childhood Education, which was introduced in 2002. It was a four year course providing a qualification for educators working in the childcare, kindergarten and primary school years. It replaced the Bachelor of Early Childhood Studies, which had been introduced in 1993 as a three year course providing a kindergarten teaching qualification. Finally, there was the Bachelor of Teaching which was introduced in 1994. It was a two year course providing either a primary or secondary teaching qualification.
The Submissions of the Parties
In the course of his short oral submissions, Mr Woodward stated that no specific position was being put on behalf of the University in respect of either question. Instead, in his helpful written submissions Mr Woodward developed the arguments which he considered could be advanced in favour of each of the competing ways of construing that part of the Will dealing with the eligibility criteria and of construing the expression "Diploma of Education of the Melbourne University". No submissions were made on behalf of the Attorney-General.
Construction of the Will – The First Question
In my opinion, the eligibility criteria for candidates for the Scholarship set out in the testator's Will should be read as being cumulative and not as alternatives. It seems to me that what the testator intended was that the successful applicant should hold a degree of the University as well as a Diploma of Education, being the only formal teacher qualification then offered by the University, and that he or she should be a person who had shown skill as a teacher or lecturer and who had displayed ability in experiment or research in the field of education (or, as an alternative to the latter requirement, held a Master's Degree in Education at the University which would evidence the required experimental or research ability.) It would hardly be surprising that a person with Professor Smyth's long connection with the University, including eight years as the foundation Professor of Education, would consider that the successful applicant should satisfy all of these criteria. The "alternatives" construction would mean that the successful applicant could be a teacher without any tertiary or teaching qualifications and with absolutely no connection with the University of Melbourne. I do not consider that this is what the testator intended when listing his eligibility criteria.
Moreover, if the "alternatives" construction is correct, a series of somewhat meaningless alternatives is prescribed. It makes no sense as a matter of expression or logic, in my opinion, to list as alternatives to a requirement that the applicant has shown skill as a teacher or lecturer that he or she hold a degree of the University. It is even more illogical to then list as a further alternative that the applicant hold the Master's Degree in Education of the University. This strongly suggests to me that the "alternatives" construction cannot be correct.
One of the arguments favouring the "alternatives" construction which was outlined by Mr Woodward was that it was possible to discern from the Will that the testator wished to provide others with the opportunities he had enjoyed but without the same degree of hardship and that he did not intend to exclude from potential candidates for the Scholarship someone who had experience as a teacher but had not yet (through his own efforts or otherwise) had the good fortune to secure a University education. The "cumulative" construction would not permit such a person to be considered. Rather, it restricted the class of candidate to those who, at the time, would be regarded as having already secured a high level of qualification. This, it was submitted, could be seen as contrary to an intention to assist persons committed to the teaching profession in obtaining that level of qualification.
I do not agree with this submission. Indeed, the very passages in the Will said to support the argument lead me to reach the opposite conclusion. The reference by the testator in clause 9 of the schedule to the Will to himself as one:
"who commenced his teaching career in a country school in New Zealand who by his own efforts gained for himself a University education in Dunedin and thereafter when married studied in Scotland and in Germany"
and the reference in the Will itself to the fact that:
"I have done much study abroad myself but I was never helped by a scholarship"
suggest to me that the testator saw "study abroad" as building on existing University and teacher qualifications rather than providing an opportunity to obtain one of these qualifications overseas. I am strengthened in this conclusion by the wording of clause 6 of the schedule to the Will which requires the holder of the Scholarship to study "education and allied subjects at a University" or to study "educational systems at work" or to study "any subject or problem … directly related to the work of the teacher or which will help in the advance of education". In every case, the holder is to "take a degree abroad or write a work or report which will be of value". Thus, it seems to me that full time study at a University was not even required of the candidate. He or she could study "educational systems at work" or an educational based problem, presumably by working overseas as a teacher and writing a valuable work or report on what the candidate had learnt or experienced.
Finally, and perhaps most importantly, the "alternatives" construction would mean that clause 5 of the schedule to the Will had no work to do, other than needlessly repeating two of the five alternative criteria. On the other hand, clause 5 makes sense if the "cumulative" construction approach is adopted. What, in my opinion, clause 5 does is to make it clear that the requirement that the candidate must have shown skill as a teacher or lecturer does not mean that a person who has just completed his or her formal teaching qualification at the University is not compelled to obtain a teaching post for the limited purpose of establishing eligibility for the Scholarship and in the contemplation that, in the event of success in obtaining the Scholarship, the post will be relinquished. Presumably, a candidate might have been able to display the requisite skill as part of the practical side of the course leading to the obtaining of a Diploma of Education.
As part of the arguments advanced in favour of the "alternative" construction, Mr Woodward submitted that it might be possible to read clause 5 as ensuring that clause 10 was not read as requiring that the applicant must have worked for some time as a teacher, whether in a State school or a private school. I do not not agree with this suggested reading of the Will. As Mr Woodward himself noted, on this line of reasoning, it is difficult to explain why clause 5 is found immediately after clause 4 and not after clause 10 towards the end of the Will. In my opinion, clause 10 was simply intended by the testator to make it clear that there was to be no discrimination between applicants, who were teachers, on the basis of the type of school at which they were teaching.
Finally, I note that despite ably putting the arguments favouring both constructions, in his oral submissions Mr Woodward conceded that it was "difficult to avoid the conclusion" that the "cumulative" construction was correct.
I therefore conclude that the relevant eligibility criteria set out in clause 4 of the schedule to the Will should be construed as if the word "and" appeared between each of them.
Construction of the Will – the Second Question
The competing arguments concerning the construction of the phrase "Diploma of Education of the Melbourne University" in clause 4 of the will and the expression "the Diploma course" in clause 5 are fairly straightforward. On the one hand, it could be argued that the description of the qualification was specific. The testator would have known that the Diploma was the only formal teaching qualification on offer within the University at the time the will was executed and that it was exclusively a secondary teaching qualification. How then can it be said, so the argument went, that the testator intended the qualification to encompass early childhood and primary teaching courses?
On the other hand, it could be argued that as the Diploma was the only formal teaching qualification on offer within the University at the time the will was executed, the testator may well have intended the reference to the teaching training course to be read more widely to encompass other teacher training courses which might subsequently be offered by the University. There was no discernible intention in the Will, so the argument went, to restricting the Scholarship to persons teaching at a secondary level. On the contrary, the testator referred to enhancing the quality of education generally at "school". It was not limited to secondary schools.
After much anxious consideration, I have concluded that the narrower construction is correct. The testator did not provide a generalised description of the sort of courses he had in mind. His description was specific, being one that was designed for the specific purposes of teacher training at secondary level. This fits logically with my earlier conclusion that the applicant had to be the holder of "a degree of the Melbourne University". Such a person, in my opinion, would not have been considered by the testator as a primary or kindergarten or childcare educator.
I therefore conclude that the expression "the Diploma of Education of the Melbourne University" in clause 4 of the Will and the expression "the Diploma course" in clause 5 of the Will should be construed as a reference to the teaching qualification offered by the University of Melbourne that has taken the place of that secondary teaching qualification. As I understand it, that would probably now be a reference to the Graduate Diploma in Education and not to any of the other teaching qualifications currently offered by the University. However, as I have not heard argument on this particular point I say no more about it at this stage.
Conclusion
As Mr Woodward stated in his submissions, it is self-evident that a construction that favoured the "alternatives" construction to clause 4 and that interpreted the reference to the "Diploma of Education" as a reference to any teaching qualification offered within the University would ensure that the pool of candidates eligible to apply for the Scholarship was both wider and more diverse than would otherwise be the case. I regret that I have been unable to give the testator's Will either of the suggested broader constructions. However, it may be that the possible cy-près application foreshadowed by Mr Woodward would have been required even if the outcome of this application had favoured the broader constructions.
Orders
Subject to hearing further from counsel on the question referred to in paragraph 32 above, the orders I would propose, which basically follow the draft minutes of order submitted by counsel for the plaintiff, are as follows:
1.The plaintiff have leave to amend the originating motion in the form of the draft amended originating motion between parties initialled by the Judge and placed on the Court file.
2.Clause 4 of the Schedule to the Will of the late John Smyth, dated 18 October 1926 (the "Will") is to be construed as if the word "and" appeared between each of the following phrases:
(a) "who holds a degree of the Melbourne University";
(b) "who holds the Diploma of Education";
(c) "who has shown skill as a teacher or lecturer";
(d)"who has displayed ability in experiment or research in the field of Education".
3.The expression "the Diploma of Education of the Melbourne University" in clause 4 of the Will and the expression "the Diploma course" in clause 5 of the Will be construed as a reference to the teaching qualification offered by the University of Melbourne that has taken the place of that secondary teaching qualification.
4.The parties' costs of and incidental to the proceeding including reserved costs, be paid on an indemnity basis out of the capital of the trust created under the Will.
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