Charity starts at home … and Charitable Trust Proceedings start with the AG


Have you heard of ‘Charitable Trust Proceedings’? That is, aside from a dim recollection from Law School or in the dusty pages of an antiquated tome on Trust Law.

Each year the Supreme Court of New South Wales has jurisdiction over several such proceedings. In recent times, Justices Slattery and Lindsay have taken particular interest in such proceedings. One such decision is today’s decision of His Honour Justice Slattery in Plummer & Ors v Attorney General of NSW & Ors [2018] NSWSC 869.

This article sets out the nutshell information about Charitable Trust Proceedings, a somewhat unknown and curious creature of the Courts despite at least occasional airings each year.

What are Charitable Trust Proceedings?

Superior Courts have always tended to have inherent jurisdiction over applications for relief in respect of alleged breaches of charitable trusts.

In New South Wales, the position is codified in the Charitable Trusts Act 1993. It defines ‘Charitable Trust Proceedings’ in section 5.

They are proceedings brought by the trustee of a charitable trust or by any other person, under the Court’s statutory or general jurisdiction with respect to any  breach or supposed breach of a charitable trust, or with respect to the administration of a charitable trust.

But they do not include proceedings for any appeal or proceedings relating merely to the construction of a trust instrument (for example, Judicial Advice proceedings, which are similar but distinct).

Why commence Charitable Trust Proceedings?

Prescribed Orders

In Charitable Trust Proceedings, the Court has wide power to make a wide array of prescribed orders if it is satisfied that there has been any misconduct or mismanagementin the trust’s administration and such an order is necessary or desirable to protect, or to secure a proper application of, existing or future trust property.  The prescribed orders include:

  •  Removing any or all of the trustees
  • Appointing a trustee
  • Precluding the employment or engagement of a person in the affairs of the trust
  • Directing a person who holds the trust not to part with it without the prescribed approva
  • Restricting the transactions that may be entered into, or the nature or amount of the payments that may be made, in the administration of the trust without the prescribed approval
  • Appointing a receiver of the property of the trust.

Important to note

The terms of the trust instrument cannot oust the Court’s power to make, or affect the operation of, any such order.

What is a charitable trust? 

A charitable trust has a specific definition at law. For the purposes of the Charitable Trusts Act it is a “trust established for charitable purposes and subject to the control of the Court in the exercise of the Court’s general jurisdiction with respect to charitable trusts”.

Leave to commence Charitable Trust Proceedings

What leave?

Charitable Trust Proceedings require leave to commence.  They are not to be commenced unless the Attorney General has authorised the bringing of the proceedings or if leave to bring the proceedings is obtained from the Court.

The court cannot grant leave unless it is satisfied that the Attorney-General has had an opportunity to consider whether to authorise the proceedings, or that referral of the matter to the Attorney-General is not appropriate because of its urgency or other good cause.

It is a function of the Crown as parens patriae to ensure the due administration of established charities and the proper application of funds devoted to charitable purposes.  This function is executed by the Attorney-General – as the officer who represents the Crown.  For this reason, the Crown, represented by the Attorney-General, has been described as ‘the guardian of the public interest in the enforcement of charities’.

How to obtain leave to commence? 

Leave to commence requires either a motion for leave or an affidavit in support of the summons commencing proceedings.

The Plummer proceedings

What was the charitable purpose

The charitable purposes were religious purposes.

The plaintiffs were each an ordained elder of The Church of the Living God in Hurstville.

Some facts about the The Hurstville Church.

It is is not led by a minister.  It is made up of a congregation of self-led believers professing the Christian faith, who meet of their own accord.  The congregation had been meeting continuously since 1966.

What did the trustees seek? 

The trustees sought judicial determination relating to property said to be a charitable trust property so they could administer the property in an appropriate manner.

The declarations and orders sought addressed the following matters:

  • Whether charitable trusts were declared by any of the relevant deeds of trust made at various times between 1971 and 1985.
  • Who are the Trustees of any charitable trusts constituted pursuant to the deeds of trust?
  • Pursuant to which deeds of trust do the Trustees hold trust property.
  • Whether certain individuals should be removed as trustee or appointed as trustee.

Procedural Points to note in this case.

  • The proceedings were commenced by way of Summons.
  • The first defendant is the Attorney General for NSW and The Attorney General gave consent pursuant to Charitable Trusts Acts 6(1) for the bringing of the proceedings.
  • The plaintiffs’ affidavit evidence drew upon the recollection and experiences of a number of persons involved with the Hurstville Church over 50 years.

Click here for a copy of the case.


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