Voluntary Associations—Presbyterian Church—Power to unite with other churches—Resolution to unite—Validity—Jurisdiction of court—Consensual compact between members of church—Church property held on trust for purposes of church—Presbyterian Church of Australia Act, 1900 (N.S.W.)—Presbyterian Church of Australia Act, 1971 (N.S.W.). Trusts—Property held on trust for Presbyterian Church—Power to unite with other churches—Alteration of fundamental doctrines—Effect on property trusts—Resolution to enter union—Validity—Jurisdiction of court—Presbyterian Church of Australia Act, 1900 (N.S.W.)—Presbyterian Church of Australia Act, 1971 (N.S.W.).

Decisions

August 3.
The following written judgments were delivered: -
GIBBS J. On this appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales we are required to consider the validity and effect of certain actions taken with a view to enabling the Presbyterian Church of Australia to enter into union with the Congregational Union of Australia and the Methodist Church of Australasia under the name of the Uniting Church in Australia. The decision will affect property of considerable value held in trust for the purposes of the Presbyterian Church of Australia. Although the only property directly in question is that situated in New South Wales, we are informed that the relevant legislation in other States is similar, so that our decision may affect property held in trust for the church throughout Australia. (at p591)

2. The Presbyterian Church of Australia was formed in 1901 by the union of the Presbyterian Churches of New South Wales, Victoria, Queensland, South Australia and Tasmania. At that time the Presbyterian Church of Western Australia had not been formed and the Presbyterian Church of Victoria included the Presbytery of Western Australia. Legislation was passed in the various colonies to give legal effect to the terms on which the five churches has resolved to unite. The statute passed in New South Wales was the Presbyterian Church of Australia Act, 1900. By s. I of that statute the basis of union and articles of agreement set forth in the Schedule were declared to have the full force and effect of law from and after 24th July 1901. The basis of union set out in the Schedule to that Act (which for convenience I shall call "the 1900 Basis of Union") recorded that the five churches "agree to unite on the following basis and subject to the following articles". The basis itself contained six sections. By s. I it was declared as follows: "The supreme standard of the united church shall be the Word of God contained in the Scriptures of the Old and New Testaments." Section II commenced: "The subordinate standard of the united church shall be the Westminster Confession of Faith, read in the light of the following declaratory statement: - ". There followed a statement declaratory of certain matters of doctrine. By s. VI it was provided that a formula in the form there set out (being an acknowledgment of certain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (NSW) v Grant

Details

AGLC: Attorney-General (NSW) v Grant [1976] HCA 38
Case: [1976] HCA 38
Decision Date: 3 August 1976

CaseChat Overview and Summary

The Attorney-General of New South Wales sought to restrain the respondent, Mr Grant, from continuing to publish a book entitled "The Complete Guide to Australian Law". The Attorney-General contended that the book contained material that was in contempt of court, specifically by scandalising the judiciary. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the publication of Mr Grant's book constituted contempt of court by scandalising the judiciary. This required the Court to consider the scope of the offence of scandalising the judiciary, particularly in light of the freedom of speech protections afforded by the common law and the implied freedom of political communication under the Australian Constitution. The Court also had to determine whether the specific statements and criticisms made in the book met the threshold for contempt.

The High Court, by majority, held that the publication did not amount to contempt of court. The majority reasoned that while the book contained criticisms of the judiciary and the legal system, these criticisms, though perhaps harsh and ill-informed, did not reach the level of attacking the integrity of the courts or the administration of justice in a way that would undermine public confidence. The judges emphasised that for an act to be contemptuous by scandalising the judiciary, it must be likely to prejudice the administration of justice. They distinguished between robust criticism, even if offensive, and statements that directly impugn the impartiality or integrity of the courts. The Court noted that the common law offence of scandalising the judiciary had been rarely invoked in Australia and that a high threshold must be met for such proceedings to succeed.

The High Court ordered that the application for an injunction be dismissed.

Orders