Christian Revival Crusade Inc v Milne (No 2) - [2008] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHRISTIAN REVIVAL CRUSADE INC v MILNE (NO 2)
[2008] SADC 43
Judgment of His Honour Judge Tilmouth
18 April 2008
ASSOCIATIONS AND CLUBS - JURISDICTION OF THE COURTS - INTERFERENCE IN INTERNAL MANAGEMENT - GENERALLY
Circumstances in which the court will grant declarations concerning the management and internal affairs of religious organisations, discussed. Declarations refused.
Jurisdiction of the court to make orders for possession with respect to residential leases, considered.
District Court Act 1991 (SA) s37; Real Property Act 1886 (SA) Part 17; Associations Incorporations Act 1985 (SA) s25(a); Residential Tenancies Act 1995 (SA) s24(1)(a); Cameron v Hogan (1934) 51 CLR 358 ; Green v Page [1957] Tas SR 66; Amad v Grant (1947) 74 CLR 327; Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd [2006] SASC 38, referred to.
Egan v Willis (1998) 195 CLR 424; Griffiths v ANZ Banking Group Ltd (2002) 83 SASR 491; Australian Provincial Association Insurance Ltd v Rogers (1943) 43 SASR 202; Turner v York Motors Pty Ltd (1951) 85 CLR 55, applied.

CHRISTIAN REVIVAL CRUSADE INC v MILNE (NO 2)
[2008] SADC 43
The Principal proceedings

On 27 November 2007 the court delivered extensive reasons for judgment dismissing the action by the plaintiff as incompetent.[1] The court adjourned the third party proceedings, which were tried in early April 2008. At the same time extensive submissions were made in relation to costs of the trial. These reasons deal with the third party proceedings only.
[1] Christian Revival Crusade Inc v Milne & ors [2007] SADC 125.
As a consequence of that judgment, orders were entered on 6 December 2007 in the following terms:
1.The action by the Christian Revival Crusade Gawler be dismissed as incompetent.
2.The public officer of the plaintiff for the time being is Mr Neil Stuart Milne.
3.In the capacity of public officer of the plaintiff Mr Milne is entitled to retain custody of the common seal of the Plaintiff and the certificate of title of the Hillier Road, Evanston property.
4.The purported annual general meeting of the plaintiff on 22 October 2006 was invalid.
5.All resolutions passed at the said meeting are invalid.
…
The matter came on again for hearing on 18 January 2008, when an adjournment was granted at the request of the third parties, because of their inability to obtain legal assistance at that stage. An order was then made for the evidence given in the trial to stand as evidence in the third party proceedings. Orders were also made requiring the third parties Mr Streeter and Tracey Stevens, to deliver any keys to the Church remaining in their possession, to the court by 4.00 pm Thursday 24 January 2008. In the result a key was supplied by Mr Streeter, on 18 January 2008, one that did not work. Another was provided by Tracey Stevens on 24 January 2008. In the meantime, the Church gained possession and changed the locks. As of the date of these proceedings the Manse remains occupied by Tracey Stevens, to which the defendant does not have access.
The third party proceedings
At the resumed hearing the third parties Shane Streeter, Tracey Stevens, Terry Stevens and Susan Stevens represented themselves. Susan Stevens also spoke on behalf of her mother, another third party Maud Rowton. The plaintiff discontinued against Christine Streeter earlier.[2] The proceedings are not pressed against Ken Ainsberry or Beverley Lockwood. A final third party, Sophie Cairns was not served.[3] The remaining third parties Barry Menzel, Marilyn and Graham Hicks and Bobby Topper did not participate at any stage of the proceedings.[4] These latter persons have submitted consent orders; no other order, including costs are pursued against them.
[2]    T3 L28.
[3]    T3 L29.
[4]    T652 L36 – 653 L6.
Orders are now claimed by the defendants against the remaining active third parties, in the nature of consequential declaratory orders, said to be consistent with the reasons of the court delivered in the principal proceedings. As in those reasons, it is convenient hereafter to refer to the plaintiff as CRC (Gawler), and the defendants as CRC (SA).
As finally articulated, the terms of the proposed orders under consideration were drawn in these terms:-
3.That the governing body of the Christian Revival Crusade Gawler Incorporated (“CRC Gawler”) is the Advisory Council as defined in article IX of the Constitution of the CRC Gawler, and as appointed by the State Executive (“the State Executive”) of CRC Churches SA International Incorporated (“CRC (SA)”), namely Pastors Hans Voortman, Neil Milne and John Poyzer, or such other persons as may be appointed by the State Executive from time to time, and the Advisory Council stands in the shoes of, and is entitled to exercise the functions and powers of the Church Board of the CRC Gawler until resolution of the impasse created by the resignation of the senior pastor and church board of the CRC Gawler in December 2001.
4.The Advisory Council may exercise its functions in consultation with the subject to the State Executive of CRC (SA).
5.That the Advisory Council and the State Executive, in right of the CRC Gawler Church Board is entitled to authorise and effect the sale of the whole of the Land comprised in Certificate of Title Volume 5756 Folio 930 (“the Land”) subject to:
5.1 the terms of the proposed Contract and Memorandum of Transfer in relation to the sale of the Land; and
5.2 the proposed manner of investment of the proceeds of the sale of the Land
being disclosed to the members of CRC Gawler in an extraordinary general meeting and the members being given the opportunity in the extraordinary general meeting to raise any questions in relation to the proposed sale of the Land and the investment of the proceeds of the sale of the Land with the Advisory Council.
6.That after the conclusion of the extraordinary general meeting referred to in clause 5 hereof, the Advisory Council and State Executive in right of the CRC Gawler Church Board, if they so determine, are entitled to execute by their nominees a Contract of Sale and Memorandum of Transfer of the Land in the same terms and to the same party as disclosed at the extraordinary general meeting.
7.That the only members of the CRC Gawler are Mr Shane Streeter and Mr Terry Stevens and that the Advisory Council and the State Executive, in right of the CRC Gawler Church Board is only required to give notice of the extraordinary general meeting to Mr Shane Streeter and Mr Terry Stevens.
…
11.That Shane Streeter, Tracey Stevens, Terry Stevens, Susan Stevens and Maud Rowton do deliver possession of the Land and all keys to the church building on the Land to Milne in his capacity as Public Officer of the CRC Gawler forthwith.
12.That Tracey Stevens do vacate her occupation of the Manse on the Land within 7 days of the date of this order and leave the premises in a good and clean condition, and that she and Shane Streeter, Terry Stevens, Susan Stevens and Maud Rowton return all the keys to the Manse by delivery of the same to Milne in his capacity as Public Officer of the CRC Gawler, within the same period of 7 days.
…
15.That Shane Street, Tracey Stevens, Terry Stevens, Susan Stevens and Maud Rowton be restrained from interfering with the sale of the Land in accordance with Orders number 5 and 6 hereof.
16.That Shane Streeter, Tracey Stevens, Terry Stevens, Susan Stevens and Maud Rowton pay the costs of the action and of the Third Party proceedings of the Defendants.
17.That Boltons Lawyers do pay the costs of the Action on any indemnity basis, but not the costs of the Third Party proceedings, to the defendants.
Draft orders previously numbered 1, 2, 8, 10, 11 and 13 inclusive, are either covered by the orders made in December 2006, or no longer pressed.
The defendant called short evidence, relating to the events since handing down of the judgment last year. It was to the effect that nothing had changed of significance. It emerged the third parties had tried and failed to convene a meeting of CRC (Gawler). They were, however, required to conduct negotiations to that end exclusively through the solicitors for CRC (SA). It also emerged that the defendants were not willing to hold meetings until the court had first determined the membership of CRC (Gawler), as envisaged by draft order No. 7, quoted above.
The CRC (Gawler) Constitution
Before considering those questions, it is desirable to retrace some of the findings of the court in the principal proceedings. At first it is convenient to be reminded of the salient aspects of the governing Constitution of the CRC (Gawler). Membership is governed by Chapter III and provides:[5]
[5]    Exhibit D2, V2, P9.
III     MEMBERSHIP
A     MEMBERSHIP OF THE ASSEMBLY
Shall comprise people:
(1)     Who are saved by grace through faith in the Lord Jesus Christ;
(2)     Who have been baptised in water by immersion subsequent to a responsible and personal confession of faith in Christ;
(3)     Who accept and support the ministry and senior leadership of the Assembly;
(4)     Who attend services as regularly as possible;
(5)     Who are not practising members of any other church;
(6)     Who have attained the age of fifteen years;
(A prospective member shall apply to the Senior Pastor for membership. That application must be approved by the Church Board.)
Part B of Chapter III requires an Annual General Meeting to be held every calendar year, on at least fourteen days prior notice to all members. Members must be supplied with a balance sheet, an assembly report, audited financial statements, a report of the Senior Pastor (or appointed) and must be given the “opportunity to discuss any matters relating to the general running of the Assembly”.[6] Valid resolutions or appointments to the governing body, the Church Board, are carried upon a majority of two thirds of the members, with the exception of constitutional alteration.
[6] Chapter III C(2).
In relation to disputes between the Church Board and the members, it pays to repeat the terms of the Constitution for dealing with them :-
IX MATTERS UNRESOLVED
In the event of circumstances occurring not envisaged or not resolvable according to this Constitution, any two members of the church Board may conjointly request and authorise the state Executive of the Christian Revival Crusade Incorporated in South Australia to appoint a minimum of three (3) members of the State Executive to resolve the impasse. These members of the State Executive shall be known as the Advisory Council, and their decision, by a simple majority, shall be final.
At all times during the trial and continuing to the present time, an Advisory Council within the meaning of Chapter IX was in place, because no Senior pastor was appointed and the previous Church Board had resigned.
The declarations relating to the management of CRC (Gawler)
Declarations 3 to 5 inclusive, seek to cement by curial orders certain observations of the court in the course of its reasons in the principal proceedings. The inspiration for orders in those kinds of terms, so it was submitted, derive from the following passage in the reasons of the court:[7]
The limited and quite specific scope of the powers of intervention do not authorise the State Church to control a local church contrary to the constitution, or mean that CRC Gawler thereby necessarily ceased to exist. On the contrary, for the period of the impasse the Advisory Council could exercise the functions and powers of the Church Board for the duration, such that it continued to exist and function as a distinct juristic entity. This effectively meant the Advisory Council stood in the shoes of the local Church Board, exercising its powers and functions. Even so, it remained bound to resolve the impasse according to the provisions of the constitution, to the extent they were otherwise applicable.
It is apparent the proposed declarations pick up some of the words actually employed by the court in this passage.
[7] At para [97].
The submission for CRC (SA) misunderstands the purpose lying behind these reasons and fails to appreciate the proper scope and function of the declaratory judgment. In the principal proceedings, the court found that an Advisory Council was properly appointed under Article IX of the Constitution of CRC (Gawler). Yet in the context of Chapter IX “matters unresolved”, the court was at pains to point out the powers of intervention were:[8]
“ … specific in the sense that intervention must relate to the circumstances incapable of resolution under the Constitution and restricted in the sense that the capacity to intervene endures only for so long as the impasse remains unresolved”.
[8] At para [95].
The court proceeded to explain that once the relevant impasse was resolved, the power of intervention was “necessarily spent”,[9] and that the powers of intervention were confined to the resolution of the particular impasse giving rise to intervention in the first place. In that situation the Advisory Council then exercised the same powers and functions as the Church Board would have in relation to the subject mater of the impasse.[10]
[9] At para [95].
[10] At para [96].
However, the court went on to hold the Advisory Council appointed under Chapter IX of the Constitution, “remained bound to resolve the impasse according to the provisions of the Constitution, to the extent they were otherwise applicable”, “remained accountable to the Gawler assembly”, and was obliged to “observe the rules of natural justice” with respect to its members.[11] These obligations flowed into the future of the CRC (Gawler) and touched the subject matter of the proposed sale of the land at Evanston.[12]
[11] At para [97].
[12] At para [101].
The purported effect of the orders as presently drafted, is to crystallise for good, an inherently fluid state of affairs. They effectively by-pass the other provisions of the Constitution and overlook the findings in relation to the limited scope and function of the interim management regime. That being so, declarations are entirely inappropriate.
Proposed order 4 seeks a declaration that the Advisory Council may exercise its functions in consultation with the State Executive. The genesis of this lies in other comments by the court,[13] but once again these are misunderstood. These observations dealt with the contention of the plaintiff that the Advisory Council impermissibly delegated or abdicated its functions to the State Executive of CRC (SA). The court did not seek to go any further than that. Such a declaration would also be contrary to Clause IV A(5) of the Constitution which reads:[14]
The church Board shall exercise full authority, namely, legislative, executive and judicial power over all Assembly matters, except in those areas that come under the designated authority of the Senior Pastor (Article A IV (B)).
[13] At paras [111-116].
[14] Exhibit D2, V2 P10.
Furthermore, the Church Board is, as the Constitution declares, one with respect to “a self governing local church”, that is an autonomous Church having full authority to manage its own affairs (Article D(1)). Just because the court chose to make the observation that the Advisory Council so happened to comprise members of the State Executive and did not thereby compromise its functions as such, does not mean the other provisions of the Constitution giving it autonomous authority, have no meaning or effect, for plainly they do. The declaration in the terms sought is therefore refused.
Nor would orders 3 and 4 accord with a proper application of the principles relating to declaratory orders. No doubt the court has the authority to make declarations with respect to matters “within its jurisdiction” under s37 of the District Court Act 1991 (SA). The court has already determined the instant dispute is within the subject matter of its jurisdiction and therefore cognisable by the court. It has in fact granted limited declaratory relief within the limits of that jurisdiction.
Nevertheless there are recognised limits on the scope of declaratory orders. Such relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind recognized, protected and enforced in the courts: Egan v Willis,[15] Gardner v Dairy Industry Authority.[16] Dixon, Evatt and McTiernan JJ point out in Cameron v Hogan:[17]
The foundation of the jurisdiction to grant an injunction is the existence of some civil right of a proprietary nature proper to be protected. The property under the control of the central executive and that under the control of the branches might, if all the members concurred in dissolving the association, be distributed among them, but if so, it would be by reason of a decision under the rules authorizing that distribution. Except for this, the respondent has no interest capable of enjoyment. There is much to be said for the view that payments made by members to the Branch or by the Branch or the Union to the central executive or State electorate council are final: that they are subscriptions to an object, and that no resulting interest however contingent remains in the member. No doubt indirectly in choosing delegates members may affect the mode in which the fund is expended. But whatever view may be taken of the exact and technical situation of the legal and equitable property in the various assets “belonging” to the Party, it is reasonably clear that membership of the association carries with it no tangible or practical proprietary right. The association must be conducted, and money is needed to carry it on. There must be some margin of revenue over current expenditure, some continuing possessions for use by its officers, some rights incidentally acquired in process of fulfilling its objects. But the existence of such property is incidental and accidental. The organization is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment. See Watt v MacLaughlin (1923) 1 I.R. 112 at pp. 116-118.
[15] (1998) 195 CLR 424 at 439.
[16] (1977) 52 ALJR 180 at 188.
[17] (1934) 51 CLR 358 at 377-378.
The court entertained jurisdiction and entered the orders referred to at the beginning of these reasons, on the basis that “propriety interests in property and the enforcement of the consensual compact embodied in the respective constitutions of the CRC parties” and the potential denial of the “enjoyment to church recreational property” were involved. [18]
[18] At [17].
The issues engaged by the third party proceedings are somewhat different. Insofar as declarations are maintained in relation to the status and capacity of the Advisory Council, these are matters of internal management capable of resolution under the Constitution and by a regularly convened annual or special general meeting, so that those orders fail for that reason: Green v Page.[19] No question of actions or determinations made ultra vires arises in this instance. In effect they seek no more than to ‘comfort’ CRC (SA) in its quest to sell the real estate: McGarrigle v Public Service Board[20] and Mentha v G E Capital Ltd.[21]
[19] [1957] Tas SR 66 at 77-78.
[20] [1979] 1 NSWLR 292 and 295.
[21] (1997) 154 ALR 565 at 574–575.
The declarations relating to the sale of Church property

The fifth and sixth draft orders, essentially seek the blessing of the court to sell the real estate at Evanston. The property is owned and registered on the title in the name of CRC (Gawler).[22]As owner it has the authority to sell the land and if necessary to appoint agents for that purpose. Otherwise, as an incorporated association under the Associations Incorporation Act 1985 (SA), it may, acting under s25(a) thereof, “acquire, hold, deal with, and dispose of, any real or personal property”. Accordingly CRC (Gawler) retains the power of sale over the property, not the Advisory Council or the State Executive. Under the Constitution, neither have any relevant interest or authority, even under circumstances of impasse, to sell the land. The decision to sell land therefore can only be one made by a duly authorised resolution of the association.
[22] Exhibit P2 V1 P9.
In the present context it is apt to repeat the findings of the court in the principal action:
[138] The proper role of the Advisory Council was however quite specific to circumstances incapable of resolution under the constitution and restricted to resolving the impasse involved, so that it did not confer the power of indeterminate intervention, or subrogate to CRC (SA) the powers and functions of the Church Board indefinitely. Clause IX of the Gawler constitution provided no basis for direct closure of CRC Gawler even though that might be effected by alternative means. Therefore the decision to close CRC Gawler was unauthorised, despite the fact that those involved genuinely believed they had the power to do so, and acted bona fide. Furthermore, the Advisory Council and/or the State Executive in right of the CRC Gawler Church Board, are only entitled to authorise the sale of the land, once the obligations of disclosure, consultation and compliance with the due process provisions of the constitution are satisfied and the obligations of natural justice fulfilled.
This conclusion is reinforced by the Constitution itself. By Article 1 CRC (Gawler) is constituted by “the Assembly”. Matters of property ownership are dealt with in Chapter VI in this way:
VI PROPERTY OWNERSHIP
(1)The Assembly has authority and power to make rules and regulations for the administration of its local affairs and for the administration, management, provision and disposal of all moneys, revenues, legacies, donations and documents of every description under its control or under the control of any officer on behalf of the Assembly; elected or appointed in accordance with the provision of this Constitution, but always subject to the trust, if any affecting the same.
(2)The Assembly shall have all the powers of property ownership as laid down in the Associations Incorporation Act 1956-1985. Without in any way limiting the effect of this clause.
(3)The Assembly may in its corporate name hold, purchase, or take on lease any land, and may sell, exchange, mortgage, lease or build upon the same (with power to alter and pull down buildings and again rebuild), and otherwise deal with the same as fully and effectually as a natural person could do.
(4)In the event of the Assembly ceasing to function and distributing its funds, no individual member shall be entitled to receive any part thereof; such surplus shall be paid to a charitable institution having Objects wholly or in part similar to the Objects of the Christian Revival Crusade Gawler Inc.
The authority and control over property being firmly vested in the Assembly as so constituted under the Constitution, means that an order in the terms sought, would be plainly inconsistent with those provisions. It is therefore one that must in addition necessarily be refused on that ground. For the same reasons draft order No. 6 must necessarily fail.
The declarations relating to membership of CRC (Gawler)
By draft order 7 the defendant seeks orders of the court conclusively determining membership by declaring the only members of the CRC (Gawler) are two named persons and they are the only persons to whom notice of a meeting is required. Here the proposed order is based on the narrative of the court, contained particularly in paragraphs [128] and [129] of the principal judgment. There certain observations were made in relation to membership. By the same token the court did not make findings as to membership, as such. It referred to records of the Church, noting certain members were recorded as being present at certain meetings according to those records, but it made no relevant findings in relation to those who were duly granted membership as provided for under Chapter III, or as to the total number thereof. As a matter of fact, the court gave liberty to the parties to make further submissions in relation to those provisional “findings”.
It may be accepted CRC (SA), for reasons best known to itself, considered it was best to await clarification in relation to membership, before proceeding to hold an annual or extra-ordinary general meeting. Be that as it may, that stance misunderstands the reasons of the court. The court simply made observations based upon documentary evidence, in order to describe the background in which the validity of the meeting of 22 October 2006 was to be considered. It did not make final determinations of actual membership at that or any other point in time.
Membership of the Assembly is essentially determined upon religious criteria, outside the ambit of the jurisdiction of the court: Cameron v Hogan.[23] Those criteria are set out in Chapter III, quoted in full above. The qualification for membership involves a highly subjective judgment for which the court is ill equipped. Total memberships may change from day to day. Prospective members can apply to the Senior Pastor for membership at any time. Applications then fall for approval by the Church Board. More importantly Chapter III provides:
[23] (Above).
D TERMINATION OF MEMBERSHIP
Any member may request from the Church Board the termination or transfer of his or her membership from the Assembly. All rights to the Assembly property, moneys and goods, together with voting rights on Assembly affairs shall cease immediately termination becomes effective.
No evidence was received as to any question of termination of membership in this way, except with respect to a few “members”.[24] The Constitution does not provide for termination in other ways. It would be quite wrong in those circumstances to make orders declaring certain people to be, or not to be, members at the present time. Membership of the Church is not of itself the subject of the impasse founding the capacity of the Advisory Council to manage Church affairs. There is moreover, no practical utility in declaring that as at certain dates, so many members attended a specified meeting, or that specified numbers of those attending, were not recognised members, at that point in time. It would be wrong in principle to make orders in such terms, binding on all parties, ignoring potential or contingent events. For all that is known the membership might increase dramatically or a Pastor might be appointed.
[24] Exhibit P2, V1, pp 263, 266, 269, 273, 275, 278, 286.
It is true enough, as counsel for CRC (SA) maintained, that before an annual general meeting can take place, notice must be given to all members: Article III C. This is very much a “Catch-22” situation. The third parties, and perhaps others, maintain continuing membership. So far as one can tell, extant applications for membership have never been duly considered in this way, in accordance with the constitution.[25] It is therefore simply inappropriate for the court to make any declaration with respect to membership of the CRC (Gawler), because that involves applying wholly religious criteria, which is no function for the court to perform.
[25] Exhibit D8 Pp207-216.
Applying the principles laid down in Cameron v Hogan to the rules of CRC (Gawler) relating to membership, those rules do not confer on any member a contractual right as against the Church Board, or the Board as against the members, to enforce any decision made as to eligibility for membership on the religious grounds referred to in the Constitution. The procedures of the court are simply not apt to such determinations: Johnco Nominees Pty Ltd v Albury-Wodonga.[26] That is not to say that they do not confer certain rights of due process, but that is not an issue here as it was in the principal proceedings. For these reasons the applications for declarations relating to membership are doomed to failure. The declarations are therefore refused.
[26] [1977] 1 NSWLR 43 at 61.
The orders relating to possession
As to the declaration seeking delivery of the keys, the only live subject now remaining relates to the keys to the Manse kept by Tracey Stevens. This falls to be determined with the proposed order no 12, effecting her removal from the Manse, counsel conceding fourteen days notice would be reasonable in the circumstances.
Such orders were originally claimed in the prayer for relief (paragraph 1.7) to the third party’s statement of claim. A similar order was incorporated by amendment in the third party proceedings. As so pleaded, no particular jurisdiction is invoked. Counsel submitted this part of the claim constituted an action for possession pursuant to Part 17 of the Real Property Act 1886 (SA). Whether this court had jurisdiction with respect to such an actions was settled in Griffiths v ANZ Banking Group Ltd.[27] The invocation of that jurisdiction was not, however, specifically pleaded.
[27] (2002) 83 SASR 491 at [38-47].
The evidence is to the effect that Tracey Stevens has been in occupation of the Manse since October 2006,[28] which she uses for residential purposes for herself and her children. She has at times paid some rent, that was applied to expenses incurred by the local Church. CRC (SA) is satisfied a proper account of these monies has been forthcoming.
[28] T756 L32.
The action for possession is founded on the findings of the court that there was no valid lease. In point of fact the court held no lease in her favour was duly approved by the authority of the Church Board.[29] However the historical fact remains that she has been in occupation for residential purposes. In the absence of a valid lease, the continuing arrangement, is as a matter of law, a periodic tenancy: Amad v Grant,[30] Australian Provincial Association Insurance Ltd v Rogers,[31] and Turner v York Motors Pty Ltd.[32]
[29] At para [134].
[30] (1947) 74 CLR 327 at 337.
[31] (1943) 43 SR (NSW) 202 at 205-206.
[32] (1951) 85 CLR 55 at 64-65.
It follows the situation is one conferring a right to occupancy for the purpose of residence, within the meaning of the Residential Tenancies Act 1995 (SA), over which the Residential Tenancy Tribunal exercises “exclusive jurisdiction” under s24(1)(a) thereof. Accordingly this court lacks the jurisdiction to make an order for possession.
Alternatively, assuming the court does have jurisdiction under Part 17 of the Real Property Act, a claim for possession there-under must be made by a “claimant” who for present purposes is “the registered proprietor”: s 192(a). As the claimant in this matter, CRC (SA) is not the registered proprietor,[33] it has no standing to bring ejectment proceedings under the Real Property Act: Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd.[34] The action for possession therefore fails on both grounds.
[33] Exhibit P8, p201.
[34] [2006] SASC 38 at [32].
Sundry issues
The proper application of the above principles, means that orders according to the terms filed consent of the non-participating third parties are inappropriate.
The fifteenth draft order, seeks an injunction restraining a number of the third parties from interfering with the sale of the land. As declarations permitting the sale will not to be made, no content remains over which the proposed order can operate. As there is no present evidence suggesting those persons intended to prevent the sale of land other than by pursuing whatever legal remedies might be legitimately available to them in the courts, an order for injunction would fail for that reason as well.
Finally, with respect to the third party proceedings, costs orders are sought as against five remaining third parties. As to Maud Rowton, an elderly woman in her late 70s, it is plain that she had little active involvement, other than to lend her support by her presence at the meeting of October 2006, or otherwise by making up the numbers. Re-reading her evidence shows an interest, but that she was not a force of consequence behind these proceedings. In any case, it would be oppressive to make an order for costs against a woman of her age in her personal circumstances.
In any case, as the CRC (SA) fails on all grounds in the third party proceedings, it must pay the costs of the third parties, on a party and party basis.
It is quite obvious this long standing dispute has been wasteful of time and resources, unproductive in the sense that the impasse of several years duration has not yet been broken, and highly divisive. It is to be hoped the third parties and any prospective member recognise the tail cannot wag the dog indefinitely. For its part CRC Churches International South Australia Inc in general, and the Advisory Council in particular, should now fully realise decision making must come within the four walls of the CRC (Gawler) Constitution, as interpreted in this and the earlier judgment of the court. They should appreciate that whilst the tail remains, it can only be wagged by them, to borrow an entreaty coined by Lord Halsbury LC in Re Johannesburg Hotel Co: Exparte Zoutpansberg Prospecting Co,[35] to a legal tune and in a legal manner.
[35] [1891] 1 Ch 119 at 128 p10.
Summary and conclusion – the third party claim.
The court finds the application for declarations as to the management and membership of CRC (Gawler) to be misconceived in point of fact and inappropriate in point of principle. The applications for declarations of membership are matters for religious judgment, into which the court should not intrude. The court has no jurisdiction to make orders for possession of real property in the name of CRC (SA) and if it had, CRC (SA) lacks standing to bring the action, as presently constituted.
As matters stand, the third party proceedings are dismissed. CRC (SA) must pay the costs of the third parties, on a party and party basis.