DEF v Trappett

[2016] NSWSC 1698

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	DEF v Trappett [2016] NSWSC 1698
Hearing dates:	11 to 12 October 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) The proceedings be dismissed; (2) The matter be listed for argument on costs at 9.30am on Friday, 16 December 2016; (3) On or before 4pm on 13 December 2016, the parties file and serve submissions on costs that are not to exceed three pages; (4) There be liberty to apply.
Catchwords:	DISCIPLINARY ACTION – church – priest – catholic priest challenges finding by church body that he committed sexual abuse – complaint that priest sexually exploited adult parishioner – complaint referred for assessment under “Towards Healing” – assessors found complaint substantiated – report referred to Archbishop for further action – Archbishop contemplating removal of plaintiff’s faculties – alleged denial of natural justice – whether Court has jurisdiction to hear complaint – basis for interference with disciplinary actions of private bodies – relations between parties not contractual – no church property involved – not shown that plaintiff’s emoluments at risk – no threat to livelihood – potential damage to plaintiff’s reputation from dissemination of report not sufficient to confer jurisdiction to “review” process that lead to production of report – Court had no jurisdiction to intervene – proceedings dismissed.
Legislation Cited:	Anglican Church in Australia Constitution Act 1961 (NSW) Commission for Children and Young People Act 1998 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Criminal Justice Act (Qld) Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld) Roman Catholic Church (Corporation of the Sister of Mercy of the Diocese of Cairns) Land Vesting Act 1945 Roman Catholic Church (Incorporation of Church Entities) Act 1954 Roman Catholic Church (Northern Lands) Vesting Act 1941 Roman Catholic Church Lands Act 1985 Roman Catholic Church Trust Property Act 1936 Supreme Court Act 1970 (NSW)
Cases Cited:	Abela v Royal New South Wales Canine Council Limited trading as Dogs New South Wales [2015] NSWSC 242 Adamson v West Perth Football Club Inc (1979) 27 ALR 474 Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 Australian Football League v Carlton [1998] 2 VR 546 Buckley v Tutty [1971] HCA 71; 125 CLR 353 Cameron v Hogan [1934] HCA 24; 51 CLR 358 Carter v NSW Netball Association [2004] NSWSC 737 Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 78 NSWLR 393 Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R 26 Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 Dickson v Pharmaceutical Society of Great Britain [1970] AC 403 Ex parte; The Rev George King (1861) 2 Legge 1307 Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 Field v NSW Greyhound Breeders, Owners & Trainers Association [1972] 2 NSWLR 948 Fisher v Keane (1879) 11 Ch D 353 Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 Harrington v Coote (2013) 119 SASR 152 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 Hepworth Manufacturing Co Ltd v Ryott [1920] 1 Ch 1 Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 Lipohar v The Queen [1999] HCA 65; 200 CLR 485 Liverpool Touch Football Association v New South Wales Touch Association Incorporated [2014] NSWSC 1553 Macqueen v Frackelton [1909] HCA 28; 8 CLR 673 Mitchell v Royal New South Wales Canine Council [2001] NSWCA 162; 52 NSWLR 242 Murdison v Scottish Football Union (1896) 23 R (Ct of Sess) 449 Obeid v R [2015] NSWCCA 309 Plenty v Seventh-Day Adventists Church of Port Pirie (1986) 43 SASR 121 R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] 1 QB 815; 1 All ER 56 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Rinehart v Welker [2011] NSWCA 403 Rigby v Connol (1880) LR 14 Ch D 482 Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 102 Scandrett v Downing (1992) 27 NSWLR 483 Sturt & Anor v The Right Reverend Dr Brian Farran, Bishop of Newcastle and Ors [2012] NSWSC 400 Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117
Texts Cited:	Forbes, Justice in Tribunals, 4th edition
Category:	Principal judgment
Parties:	DEF (Plaintiff) Mark Eustance (Third Defendant) Most Reverend Archbishop Mark Coleridge (Fifth Defendant)
Representation:	Counsel: WG Muddle SC; M McAuley (Plaintiff) RPL Lancaster SC; TJ Boyle (Third Defendant) P Skinner (Fifth Defendant)   Solicitors: McAuley Hawach Lawyers (Plaintiff) Unsworth Legal Pty Ltd (Third Defendant) Mullins Lawyers, by their agents Carol & O’Dea (Fifth Defendant)
File Number(s):	2014/374692

Judgment

1. The plaintiff in these proceedings is a Roman Catholic priest who was ordained in the Brisbane diocese of the Catholic Church in 1996. The fifth defendant, Mark Coleridge, is the Archbishop of the Brisbane diocese of the Catholic Church (the “Archbishop”).

2. In or about February 2014, a complaint was received by the Archbishop alleging that the plaintiff had conducted a sexual relationship with an adult parishioner between 2000 and 2003 and, in doing so, had abused his position by exploiting her at a vulnerable time. The third defendant, Mark Eustance, is the Director of the Church’s Professional Standards Office in Queensland (the “Director”). The complaint was either referred to him or his predecessor. Pursuant to the Church’s protocol for dealing with such complaints, known as “Towards Healing”, the Director appointed the first and second defendants, Scott Trappett and Dan-Phong Nguyen, as the assessors to inquire into and determine the complaint (the “Assessors”). The Assessors did so and found the complaint substantiated. They produced a report setting out their findings (the “Assessors’ Report”). In the ordinary course that report or at least their findings are provided to, inter alia, the Archbishop for consideration of what action, if any, should be taken against the plaintiff.

3. Under Towards Healing, the plaintiff can seek review of an adverse assessment. The plaintiff made an application for review of the assessment but it has not progressed while these proceedings have continued. The fourth defendant, The Honourable John Dunford QC, is the Chair of the National Review Panel for the purposes of Towards Healing and has an overall responsibility for the conduct of such reviews. None of the Assessors or Mr Dunford QC took any active role in these proceedings. Instead, they submitted to the orders of the Court.

4. In these proceedings the plaintiff seeks declaratory relief to the effect that he was denied natural justice “in the circumstances leading to” the making of the Assessors’ Report and to the effect that he was also denied natural justice by a failure to provide him with (all) the material on which the Assessors’ Report was based (see [84]). He also seeks injunctive relief precluding any of the defendants, but especially the Archbishop, from “taking any further step in reliance” on the Assessors’ Report as well as an injunction restraining the publication of the Assessors’ Report. [1]

   1. Amended Statement of Claim (“ASOC”) prayers 2, 3 and 9 to 9C

5. As explained below, the type of step that might be taken by the Archbishop in reliance on the Assessors’ Report was the removal of those “faculties” enjoyed by a priest in a diocese that are “freely granted” by the diocesan Bishop, such as the authorisation to perform certain functions and services for a particular parish or within a diocese (see [110]). It was not demonstrated that any of the financial emoluments enjoyed by the plaintiff are at risk, nor was it suggested that the Archbishop could take action to remove the plaintiff from the priesthood, that apparently being a matter exclusively for Church (or “canon”) law.

6. For the reasons that follow I find that this Court does not have jurisdiction to deal with the plaintiff’s claims.

7. In summary, none of the various forms of action which the plaintiff complains of involved the exercise or potential exercise of any power conferred by statute or prerogative. Further, the plaintiff did not propound any cause of action in defamation against any defendant, nor was injunctive relief sought on the basis that the publication of the Assessors’ Report would be defamatory of him. Instead, the plaintiff sought to invoke this Court’s jurisdiction, such as it is, to intervene in the affairs of private or domestic bodies such as clubs, associations and religious bodies. As I will explain, the jurisdiction to do so has traditionally been confined to cases where the relevant rules of the organisation are contractually binding or where the decision complained of affects the enjoyment of property rights, constitutes an unreasonable restraint of trade or (arguably) threatens their livelihood.

8. In this case, the plaintiff disclaimed any suggestion that he had agreed to or was much less bound in contract by Towards Healing and no contractual relationship exists between him and any of the defendants. Otherwise, the plaintiff did not establish that his enjoyment of any property rights, his livelihood or the pursuit of any trade was jeopardised by the Assessors’ Report or any action that the Archbishop proposed to taken in reliance on it. Further, while I accept that the dissemination of the Assessors’ Report to the complainant in accordance with the Towards Healing protocol has the potential to adversely affect the plaintiff’s reputation, I do not accept that potential alone enlivens any jurisdiction in this Court to review the process that led to the making of the Assessors’ Report or action taken by the Archbishop in reliance upon it.

9. Before expanding upon these conclusions it is necessary to note three matters.

10. First, nothing in this judgment is a reflection on the adequacy or otherwise of the Towards Healing protocol as an approach to addressing and resolving complaints of sexual abuse by clergy or other persons within the Catholic Church.

11. Second, all the events that gave rise to these proceedings occurred in Queensland. At least the plaintiff and the Archbishop are resident there. It follows that in determining this case the Court is exercising the jurisdiction conferred by s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld) and received by s 9 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW). None of the parties applied to transfer the proceedings to Queensland.

12. Third, in February 2015, shortly after the proceedings were commenced a non‑publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW) was made in respect of the identity of the plaintiff, the Archbishop, the complainant and another witness referred to at [59]. The orders provided that the plaintiff and the Archbishop would be referred to in the proceedings by pseudonyms. The orders were made by a Registrar by consent. The Court file does not contain any reasons on the file recording why those orders were made.

13. As the basis for the orders was not apparent, at the hearing of the proceedings I queried with the parties whether the non‑publication orders should be maintained in respect of the plaintiff and the Archbishop. None of the parties sought to maintain the orders in respect of the Archbishop and I revoked them. However, after receiving submissions from the plaintiff I advised the parties that the order would not be lifted in respect of the plaintiff. I formed the opinion that it was, at this stage of the proceedings, “necessary” to maintain the orders to “prevent prejudice to the proper administration of justice” and was otherwise “necessary in the public interest” (Court Suppression and Non‑publication Orders Act, s 8(1)(a) and s 8(1)(e)). The parties were advised that the reasons for maintaining the order would be stated in the Court’s final judgment.

14. I determined to maintain the orders in respect of the plaintiff because of three matters. The first was that a ventilation of the subject‑matter of the complaints against the plaintiff was likely to be highly damaging to his reputation and his ability to resume work as a priest should he ultimately be vindicated. The second was that the essence of the plaintiff’s complaint was that he was not given a fair opportunity to be heard before an adverse report was made about him and that the impact of such a report on his reputation was part of the basis on which he both claimed the Court had jurisdiction and that there was a failure to afford him procedural fairness. I consider those contentions to be reasonably arguable. Accordingly, to an extent, the publication of the plaintiff’s identity along with the details of the complaint and the findings in the Assessors’ Report described below has the capacity to destroy or undermine the very subject matter of the proceedings.

15. Nevertheless, by themselves those two matters are unlikely to render it “necessary” to maintain a non‑publication order and a pseudonym order (see Rinehart v Welker [2011] NSWCA 403). However, the third factor was that those orders had been in place for almost two years by the time of the hearing. Throughout that time the plaintiff would have been entitled to assume the orders would continue. It would have occasioned him unfairness if that assumption was defeated at the very end of the litigation process when he had already devoted time and resources to the proceedings at least in circumstances where it seems unlikely that he would have continued with the proceedings if no such order had been made in the first place. In those perhaps unusual circumstances, I determined to maintain the non‑publication order in respect of the plaintiff’s identity.

Towards Healing

16. At the outset, it is necessary to describe the scope and effect of Towards Healing. Its legal status is addressed below (at [120] to [126]).

17. It is an agreed fact on the pleadings that Towards Healing is a document promulgated by the Australian Catholic Bishops Conference of which the Archbishop is a member. [2]

    2. ASOC paragraph 49 and 49A, CB 9; defence of third defendant at [16]; CB 47; and defence of fifth defendant at [16]

18. The version of Towards Healing that was tendered in these proceedings is dated January 2010. It describes itself as setting out the “[p]rinciples and procedures in responding to complaints of sexual abuse against personnel of the Catholic Church in Australia”. [3]

    3. CB 93

19. “Part One” of Towards Healing contains various definitions including a definition of “abuse” which relevantly includes “sexual assault, sexual harassment or any other conduct of a sexual nature that is inconsistent with the integrity of the relationship between Church personnel and those who are in their pastoral care.” It also defines “Church Authority” as including a “bishop, a leader of a religious institute … responsible for the Church body to which the accused person is or was connected at the time of the alleged abuse”. [4] In this case the Archbishop is the relevant “Church Authority”.

    4. CB 99

20. “Part Two” of Towards Healing sets out “Principles for Dealing with Complaints of Abuse”. It is not necessary to summarise the full effect of this part. Within Part Two, clause 26 is entitled “A Response to Those Accused”. It relevantly provides that “[a]ll persons are presumed innocent unless and until guilt is either admitted or determined in accordance with the requirements of the law governing their position.”

21. “Part Three” is entitled “Procedures for Dealing with Complaints of Abuse”. The process commences when either a Church Authority or the Director receives a written complaint signed by the complainant. [5]

    5. Towards Healing (“TH”); cl 36.1

22. If a complaint concerns an alleged crime, the Director must explain to the complainant that the Church has a strong preference that the allegation be referred to police and dealt with appropriately through the justice system. [6] In all cases other than those in which reporting is mandatory, if the complainant indicates an intention not to take the matter to police, the matter may proceed to an assessment. [7] If during the course of the procedure allegations emerge that suggest that a criminal offence may have been committed the procedure shall cease and the matter is to be reconsidered in accordance with clause 37. [8]

    6. TH; cl 37.1

    7. TH; cl 38.1

    8. TH; cl 39.4

23. Once a complaint is made, the person whose behaviour is complained about, referred to as “the accused”, is informed “of the nature of the complaint”. [9] In particular, the “accused needs to be given enough detail about the complaint, and the person who was allegedly abused, to be able to offer a response.”

    9. TH; cl 38.5

24. If the accused denies the complaint, the matter can be investigated through an assessment. [10] Having regard to the gravity of the complaint and the potential risk to others, the Director may recommend to the Church Authority that the accused be asked to stand aside from office in the Catholic Church pending the assessment. [11] The accused is to be given the “opportunity to be heard on the matter”. [12]

    10. TH; cl 38.9

    11. TH; cl 38.10

    12. TH; cl 38.10

25. Clause 39 is entitled “Selecting the Appropriate Process”. Clause 39.1 deals with allegations against employees other than a cleric or a member of the religious staff. Clause 39.2 provides that if a process under canon law has commenced the Church Authority should liaise with the Director about responding to the victim if the complaint is substantiated. At least so far as the accused is concerned, this clause appears to contemplate the canon law process continuing. Other than those instances the complaint is dealt with by the assessment process provided for in clause 40.

26. The two assessors are appointed by the Director, however they are required to “be, and be seen to be, independent of the Church Authority, the complainant and the accused”. [13] The Assessors arrange interviews with the complainant and the accused, and any other persons who may aid the assessment process. [14] If the accused declines an interview he or she may provide a written response. If the accused does not wish to cooperate with the assessment, the assessment must still proceed. The Assessors must endeavour to reach a conclusion concerning the truth of the matter so that the Church Authority can make an appropriate response to the complaint. [15]

    13. TH; cl 40.1

    14. TH; cl 40.3

    15. TH; cl 40.4

27. After the assessment is completed, the Assessors provide a written report to the Church Authority and the Director. [16] In that report the Assessors must review the evidence for the complaint, examine the areas of dispute and “make findings about whether they consider the complaint to be true on the balance of probabilities, based upon the evidence available at that time”. [17] The Assessors must provide reasons for their findings. The Assessors may comment on the seriousness of the violation of the integrity of the pastoral role. [18]

    16. TH; cl 40.9

    17. TH; cl 40.9

    18. TH; cl 40.9.2

28. Subclause 40.9.3 provides that the “complainant is entitled to know promptly the findings of the assessment and the reasons for them” as is the accused “if he or she has participated in the assessment, or otherwise could be subjected to disciplinary action by the Church Authority”. The Director is conferred with responsibility to communicating the “relevant findings to the complainant, the accused and the Church Authority”.

16. If the complaint is sustained then the matter is then referred to the Church Authority. Clause 40.10 provides that, if the Assessors consider the complaint sustained, then the Church Authority must consider what action needs to be taken under clauses 41 and 42.

17. Clause 41 concerns outcomes relating to the complainant. If the Church Authority is satisfied of the truth of the complaint, the responses to the victim for complaints that were not referred to the police may include the provision of an apology, the provision of counselling services or the payment of counselling costs.

18. Clause 42 concerns outcomes relating to the accused. Clause 42.3 provides that if the “abuse is admitted” or the findings raise concerns “about the person’s suitability to be in a position of a pastoral care” then the:

“Church Authority, in consultation with the Director of Professional Standards and the Consultative Panel, shall consider what action needs to be taken concerning the future ministry of the person, taking account of the degree of risk of further abuse and the seriousness of the violation of the integrity of the pastoral relationship.”

32. Clause 42.5 provides that, if a cleric or religious current employee of the Church has admitted to or been found guilty of abuse, the Church Authority may make a decision as to their future ministry. The decisions of the Church Authority as to future ministry are not to be inconsistent with canon law. [19] Clause 42.6 provides that “in making decisions on the future of a person found guilty of abuse, the Church Authority shall take such action as the situation and the seriousness of the offence demand.”

    19. TH; cl 42.5

33. Clause 44 is entitled “Review of Process and Findings”. A review of the Towards Healing process is available to an accused, but only if they cooperated with the assessment process. [20] A review is initiated by a written request accompanied by reasons for the dissatisfaction with the process or findings. The Director is obliged to refer the request to the Chairperson of the National Review Panel who will arrange for the review to occur. [21] Although not expressly stated it seems implicit in clause 44 that the Chairperson will then appoint a “Reviewer” to conduct the review.

    20. TH; cl 44.1.3

    21. TH; cl 44.1.2

34. The review is described as “an independent evaluation, not only of whether there is substance in any of the grounds of complaint, but also whether the principles” in Part Two of Towards Healing have been complied with. [22] However, clause 44.2 provides it “is not a review of the outcomes determined: under clauses 41 and 42. Clauses 41 and 42 concerned the treatment of a victim and accused consequent upon the making of an assessment.

    22. TH; cl 44.2

35. The procedure to be adopted for the review is a matter for the Reviewer. [23] The Reviewer is to be provided with access to all relevant information. At the conclusion of the review, the Reviewer provides a report with recommendations to the Chairperson. [24] Clauses 44.8 and 44.9 provide:

“44.8   If the Reviewer considers that there has been a failure to observe the required processes, or identifies deficiency in the findings, the Chairperson shall discuss the case with the Reviewer and at least one other member of the National Review Panel. The Panel shall consider the Reviewer’s report and make such recommendations as it sees fit to the Church Authority in relation to the complaint.

44.9   The National Review Panel may substitute its own findings for those of the assessor or assessors, provided that it has all the information available to do so. The Panel may direct that a further assessment be undertaken.”

23. TH; cl 44.6

24. TH; cl 44.7

36. At this point it is only necessary to note three matters about Towards Healing.

37. First, as noted in [25], clause 39.2 of Towards Healing differentiates between the application of a “Church penal process under canon law” and the assessment of complaints under Towards Healing. Further, leaving aside potential reputational damage that might flow from the making and distribution of an Assessors’ Report (see [40]), the only specific adverse outcomes for a priest contemplated under Towards Healing are those which follow from the making of a decision by a “Church Authority” under clause 42 and then only in terms that assumes that the authority otherwise has the power to take that action (“what action needs to be taken”). In other words, Towards Healing does not confer any power upon anyone within the Church to take action that they do not already have the authority to take.

38. Consistent with this, in a submission to the Royal Commission into Institutional Responses to Child Sexual Abuse (the “Royal Commission”) a number of bodies associated with the Church who described themselves as the “Truth Justice and Healing Council” and which included the Archbishop submitted as follows: [25]

“As Professor Parkinson has noted, Towards Healing was never intended to operate as a disciplinary scheme for priests or members of religious institutes accused of abuse. Towards Healing cannot, and does not, embody a disciplinary code with standard penalties to be imposed on offenders. Inherent in the structure of the Church is the fact that each diocese or religious institute retains responsibility for decisions regarding priests in that diocese.

… Each Church Authority acts autonomously in relation to outcomes under Towards Healing, as outlined in section 2”. [26]

25. CB 319 at [47]

26. CB 443 at [13]

39. Second, at the hearing of this matter there was debate about the actual or likely consequences for a priest of an adverse finding being made against them either by the Assessors or the Reviewer. On behalf of the plaintiff it was contended that Towards Healing required or envisaged that a Church Authority would be bound by such a finding when considering proposed action against the priest concerned. The plaintiff relied on an extract from the above submission that stated “[i]n practice, Church Authorities almost invariably accept the findings and recommendations contained in an assessment report.” [27] However, the need to finally determine that issue only arises if it is first determined that the Court has “jurisdiction” to deal with a dispute that arose out of the application of Towards Healing to a complaint of sexual abuse by a priest. For the purposes of determining that issue I am assuming, in the plaintiff’s favour, that on its face Towards Healing envisages the Archbishop being “bound” by the Assessors’ determination of the complaint in the sense of acting on its findings unless good reason to the contrary is shown. However the form of action that is contemplated is exclusively a matter for the Archbishop, save that any such action must be undertaken in a manner consistent with canon law (see [32]).

    27. CB 356 at [85]

40. Third, Towards Healing does not appear to contemplate the publication generally of a report of an Assessor or Reviewer. Instead, the only dissemination of those reports expressly contemplated for by Towards Healing is to the complainant, the accused person and the Church Authority, which in this case is the Archbishop.

The Complaint

41. The plaintiff was born in 1947 in the northern part of Vietnam. His family were Catholic. When he was eight years old his family fled to southern Vietnam. From 1964 to 1969 he studied at a seminary. From 1969 until the cessation of hostilities he fought with the South Vietnamese Army. He was later arrested and subjected to various privations including imprisonment. In 1980 he escaped from Vietnam by boat and came to Australia. He settled in Brisbane.

42. In June 1996, the plaintiff was registered as a marriage celebrant. In November 1996 he was ordained as a priest and incardinated in the Archdiocese of Brisbane. From that time onwards he worked in various parishes within the Archdiocese. He had significant involvement with the Vietnamese community.

43. In his Statement of Claim the plaintiff pleads that from 2008 to 2013 he was the chaplain at the Royal Brisbane Hospital and that he lived in a presbytery in the Parish of Jubilee. [28] In his defence the Archbishop admits those matters, although they are not admitted by the Director. Further, from at least November 2014, the plaintiff has been in receipt of a stipend and a fully maintained motor vehicle provided by the Archdiocese of Brisbane, as well as an allowance for household expenses and private health insurance. [29]

    28. At paragraphs 44 and 45

    29. CB 131

44. By a letter dated 15 February 2014, a former parishioner of the plaintiff made a complaint to Ms Mary Bernadette Rogers, who I infer was then the Church’s “Director of Professional Standards, Queensland”. [30] The author of the letter complained that the plaintiff had, some time around 2000 to 2003, “sexual abused and exploited” his wife. [31] In his letter, the author recounted hearing rumours to this effect at this time but discounting them. He stated that after the plaintiff was transferred in December 2004, his wife had revealed to him that she had been sexually abused and exploited by the plaintiff, but refused to provide details. The author stated that in October 2013, he uncovered letters which he believed were from the plaintiff and which he contended convincingly confirmed his suspicions.

    30. CB 177

    31. CB 145 at [7]

45. On 5 March 2014, the Archbishop wrote to the plaintiff advising him that the Director of Professional Standards had notified him that he had received a complaint. [32] The Archbishop’s letter identified the complainant and the nature of the complaint, specifically that the plaintiff had “sexually abused” the complainant’s wife. The Archbishop stated that the complaint “will be handled under the Church’s Towards Healing process”. The Archbishop stated that under that process he was “required to put the allegations contained in the complaint to you and to request [your] written response to the allegations”. The letter set out a detailed point-by-point recitation of the complaint. At the end of the letter the Archbishop advised the plaintiff that he had a right to obtain independent legal advice if he so chose and that he, the Archbishop, could make a loan available to him to reimburse his reasonable legal expenses. The Archbishop stated that he was also able to offer a support person. Finally, the Archbishop stated that he would have to consider whether to stand the plaintiff aside from his priestly ministry pending the investigation of the complaint, but before he did so the plaintiff was given the opportunity to be heard on that matter. Accordingly, the plaintiff was asked to show cause in writing why he should not be stood aside. A response was requested within 14 days. [33]

    32. CB 138

    33. CB 107

46. On 19 March 2014, the plaintiff wrote to the Archbishop. He “strongly [denied] these allegations because they are not true for me”. He stated that he was “very stressed and becoming very depressed”. [34] He did not otherwise address the suggestion that he be stood aside from his priestly duties.

    34. CB 145.10

47. On 26 March 2014, a canonical procurator, Reverend John Doherty, wrote to the Archbishop on behalf of the plaintiff repeating the denial of all wrongdoing and “formally asking for a canonical process”. The author requested that “all the evidence in the case be made available to me to inspect and respond to on his behalf”. [35]

    35. CB 146

48. On 27 March 2014, the plaintiff’s solicitors wrote to the Archbishop stating that their instructions concerned the “process which is to be dealt with under Australian law, as opposed to canon law” which was being dealt with by Father Doherty. They again repeated their client’s denial of all wrongdoing. They advised that the plaintiff had been treated at a private hospital in respect of a psychiatric complaint. They requested copies of investigation materials including any statements and other documents relied on. [36]

    36. CB 148

49. On 9 April 2014, the plaintiff’s solicitors wrote to the Archbishop advising that their client had been admitted to a different private hospital on 7 April 2014 for treatment of a psychiatric condition. They enclosed a brief note from a psychiatrist stating that the plaintiff could not attend a meeting of priests due to a medical condition. [37] The plaintiff remained as an in-patient at that hospital until 25 April 2014. [38]

    37. CB 149-150

    38. CB 211.9

50. In the meantime, on 24 April 2014, the Archbishop wrote to the plaintiff stating that he had been advised by the Director that two assessors had been appointed to assess the allegations made against the plaintiff. The Archbishop stated that as the Towards Healing process had formally begun, he had “no choice but to stand you aside from all priestly ministry until further notice”. This was the course of action foreshadowed in the Archbishop’s letter of 5 March 2014.

51. Four days later on 28 April 2014, the Director wrote to the plaintiff’s solicitors, advising of the appointment and identity of the two assessors, namely, Mr Trappett and Mr Nguyen. The Director stated that the Assessors might wish to interview the plaintiff and if he was interviewed he may have a support person or adviser present. [39] Enclosed with the letter was material setting out the experience and qualifications of Mr Trappett and Mr Nguyen.

    39. CB 153

52. On 28 April 2014, the plaintiff’s solicitors wrote to the Director. [40] Amongst other matters they requested a copy of all documents which “relate to the complaint”. They stated that without them their client would not know the case brought against him and would “not be able to make the sort of detailed response which is required”. They also stated that they would need to satisfy themselves that the plaintiff was “sufficiently well so as to adequately instruct us”.

    40. CB 159

53. The Director responded in an email dated 29 April 2014. By reference to clause 38.5 of Towards Healing the Director stated that, in his opinion, the plaintiff had sufficient information to respond to the complaint. However he also noted that he would be given the opportunity to respond in more detail during the assessment process in that he would be presented with “copies of documents which relate to the complaint”. The letter also noted that the plaintiff had been undergoing psychiatric treatment and the Assessors would be made aware of that. [41]

    41. CB 161

54. On 29 April 2014 and 2 May 2014, the plaintiff’s solicitors wrote to the Director again requesting copies of the material. In their letter of 2 May 2014 they also requested to be provided with “an outline of the allegations which are made against our client”. [42]

    42. CB 166

55. On 28 May 2014, they wrote again repeating their complaints and stating that their client was mentally unwell as he was “apparently suffering from psychotic depression”. They stated that in light of his condition, his poor command of English and his deafness it was not possible to obtain instructions “without a copy of the complaint and other documentation relating thereto”. [43]

    43. CB 168-9

56. On 29 May 2014, the Director wrote requesting a copy of a medical report concerning the plaintiff’s condition and otherwise reiterating his position set out above.

57. On 3 July 2014, Mr Trappett wrote to the plaintiff’s solicitors. [44] He offered their client an opportunity to take part in an electronically recorded interview. He noted the reference in the correspondence of the plaintiff having suffered psychotic depression and noted that no medical report had been supplied. Mr Trappett referred to a psychological assessment report from Vitality Psychology and Consulting Services Ltd dated April 2014 (the “Vitality Report”) and noted that that had concluded “there was no evidence of psychosis and elicited no evidence of an organic brain syndrome”. The letter offered various dates in August for the conduct of an interview and enclosed four documents “for [their] information”, being the complainant’s statement, a statement prepared by his wife, a statement from a “witness” and the Vitality Report. [45]

    44. CB 174

    45. CB 175

58. The statement from the complainant was the letter of 15 February 2014, which has already been noted. The statement from the complainant’s wife was in the form of a Statutory Declaration. It was either unsigned or the signature was redacted. She stated that on the first occasion of sexual contact between her and the plaintiff, he had “pulled me onto the bed and started to force himself onto me” and he “forced himself onto me and forced sexual intercourse”. [46] The balance of the statement then implies, but does not expressly state, that further sexual contact took place but that it was consensual, although she felt that she had been taken advantage of by the plaintiff given the position that he occupied and her vulnerability. Attached to that statement were copies of three letters said to have been written by the plaintiff to her.

    46. CB 186.4

59. The statement of the witness was also in the form of an unsigned Statutory Declaration. It was either unsigned or the signature was redacted. The identity of the witness was redacted. This witness stated that in 2001, the plaintiff attempted to indecently assault her. She also stated that in March 2014 the plaintiff had telephoned her and offered to pay her money not to disclose what happened. She attached a print-out of a record from her phone indicating that in March 2014 she had received a call from the plaintiff.

60. The Vitality Report suggested that it was commissioned by the Church following a report being submitted into various matters including a suggestion that between 2000 and 2004 there were reports of statues in a church connected to the plaintiff weeping oil. It has been alleged that that was a fraud designed to attract donations. [47]

    47. CB 200AA

61. In the concluding part of his letter dated 3 July 2014, Mr Trappett stated that he would accept written submissions received by 31 July 2014 and that there were various dates in August available for their client to take part in an electronically recorded interview. He stated that if, however, by 31 July 2014 he did not receive a medical report or advice regarding the plaintiff’s election to take part in an interview, or any further submission, he and Mr Nguyen would finalise the assessment.

62. On 9 July 2014, the plaintiff’s solicitors wrote to Mr Trappett advising that the plaintiff had been admitted to hospital for treatment of a psychiatric condition and requesting that no further action be taken until they had been able to obtain their client’s instructions. [48] According to a report written by Dr Martin, a psychiatrist, on 7 August 2014 that was later submitted to Mr Trappett, he was admitted following a worsening of his depression and anxiety. Dr Martin recorded that the plaintiff was hearing a “threatening persecutory voice inside his head”. [49]

    48. CB 201

    49. CB 224

63. On 15 July 2014, Mr Trappett wrote to the plaintiff’s solicitors stating that his instructions from the Director was to continue the assessment “subject to you providing a medical/clinical report” confirming the plaintiff’s psychiatric illness for consideration. The concluding part of the letter repeated the timetable for submissions set out in the letter of 3 July 2014.

64. On 18 July 2014, the plaintiff’s solicitors responded contending that, in light of the medical evidence concerning their client, it would be unfair to continue with the assessment and that the result would be “flawed for lack of procedural fairness”. The letter also referred to the definition of “abuse” in Towards Healing, contended that the material enclosed with the letter of 3 July 2014 mostly included allegations that fell outside that definition and requested that Mr Trappett “identify, with particularity, what allegations you say fall within the definition of ‘abuse’”. [50]

    50. CB 204

41. On 21 July 2014, Mr Trappett again wrote noting he did not have any medical report and repeating the timetable that he stipulated in his letter of 3 July 2014. [51]

    51. CB 206

42. On 30 July 2014, the plaintiff’s solicitors wrote to Mr Trappett. They enclosed a report of Dr Martin dated 25 June 2014. Dr Martin concluded that the most likely diagnosis that would explain the plaintiff’s symptoms was “Major Depressive Disorder”. [52] Dr Martin stated that the plaintiff’s “short term prognosis is guarded and he remains unwell and requires ongoing treatment” and the long term prognosis “will improve if there is resolution of the Towards Healing process that has been commenced”. [53] Dr Martin concluded that, “[t]he assessment and enquiry are likely to increase [the plaintiff’s] level of depression, persecutory ideation and he will have poor memory for certain facts” and that “he may become more severely depressed and require hospitalisation”. [54] Dr Martin adverted to the possibility that the plaintiff would be unable to recall significant facts relevant to the enquiry and concluded that he is “likely to see [the] allegations as evidence of persecution against him, it is less likely he will give a detailed response to allegations”, but added “[h]owever I believe he will cope with the assessment process with support”. [55]

    52. CB 215

    53. CB 216.6

    54. CB 216.10

    55. CB 217.4

43. On 31 July 2014, Mr Trappett responded noting that part of Dr Martin’s report that stated that the plaintiff “will cope with the assessment process with support” and that his depression would significantly improve with a resolution of the Towards Healing process. Mr Trappett sought clarification that the plaintiff was currently a full-time admitted inpatient. His letter concluded by repeating the timetable set out in the letter of 3 July 2014. [56] One difficulty with this is that the stipulated date for the written submissions and advice about participation in an interview was 31 July 2014, being the very date of the letter.

    56. CB 219

44. On 1 August 2014, the plaintiff’s solicitors responded contending that Mr Trappett had not fairly summarised Dr Martin’s views and that they were in the course of obtaining an updated report from Dr Martin. [57] They stated that, given the contents of Dr Martin’s report, and as he was currently in hospital, they were not able to recommend the plaintiff engage in an interview with Mr Trappett. They again sought particulars of the allegations and why they fell within the definition of abuse, contending that the material served suggested a consensual relationship. [58]

    57. CB 220

    58. CB 221.10

45. On 7 August 2014, the plaintiff’s solicitors provided Mr Trappett with Dr Martin’s report of 7 August 2014 referred to earlier. Dr Martin concluded that he did not believe the plaintiff was capable of giving evidence. He stated that he was uncertain that the plaintiff “knows fully the consequences of any enquiry or the full significance or meaning of terms and questions”. Dr Martin concluded that if the plaintiff gave evidence it would be “detrimental to his mental state and that before and after giving evidence there is a high probability of him suffering a deterioration in his depression and anxiety necessitating more intense treatment.” [59]

    59. CB 224

46. The plaintiff’s solicitors did not receive any written response to their letter. They followed up on 14 August 2014. [60] On the same date, they received a letter from the Director advising that the assessment was now complete and that the Assessors’ Report had been prepared, and enclosing a copy of the “Finding” section of the report. The Director advised the plaintiff’s solicitors that the Assessors had found “substantiated, to the required standard the allegation that between 2000 and 2003 [the plaintiff], whilst holding a pastoral care role in the Catholic Church and having a pastoral relationship with the complainant and [his wife], abused a position of trust and authority by engaging in conduct of a sexual nature with [the latter], a vulnerable person”. [61]

    60. CB 226

    61. CB 227

47. The letter enclosed a redacted version of the Assessors’ Report explaining the findings but which stated that a copy of the full report had not been provided as it was considered that its disclosure could be psychologically damaging to one or more parties. The content and effect of the Assessors’ Report is summarised below. The letter asserted that a release of the identity of the informants, and the contents of the remarks, would constitute a breach of confidence or have detrimental consequences and the Assessors’ Report contained sensitive information unrelated to the substance of the complaint. The letter advised the plaintiff that, under the clause 44.4 of the Towards Healing protocol, he could seek review within three calendar months.

48. On 21 August 2014, the plaintiff’s solicitors responded complaining about the process that had been followed. They requested that the Director provide a copy of the entirety of the material upon which the Assessors relied in coming to their decision, a complete and unredacted copy of the Assessors’ Report and requested an undertaking that no further action be taken in the matter. [62]

    62. CB 233

49. On 22 August 2014, the Director responded. He advised, inter alia, that his office had referred the request for a full copy of the Assessors’ Report to the Chairperson of the National Review Panel (ie, Mr Dunford QC).

50. On 25 August 2014, the plaintiff’s solicitors wrote to Mr Dunford QC recounting their complaints about the assessment process, including the provision of an incomplete form of the Assessors’ Report as well as the approach of the Assessors in proceeding with the assessment despite their submissions to the contrary concerning the plaintiff’s psychiatric condition and their complaints about the lack of particularisation of the complaints.

51. On 19 September 2014, Mr Dunford QC replied. He stated that he had determined that a full, unredacted copy of the Assessors’ Report should be made available and advised that that copy would be released by the Director. His letter also addressed a number of the points made in the plaintiff’s solicitors letter of 21 August 2014. Amongst other matters, Mr Dunford QC noted that the results of the investigation are “not disclosed to anyone except those with a direct interest in knowing the outcome of such investigation and any bodies or persons to whom reporting is required by law”. Mr Dunford QC also noted that, if the plaintiff considered that there had been “a breach of procedural fairness or a failure of process or error in the findings of the Assessment”, then he had the right to seek review pursuant to clause 44 of Towards Healing. [63]

    63. CB 253

52. Three days later, on 22 September 2014, the Director provided a full, unredacted copy of the Assessors’ Report (save for the matter noted in [84).

53. On 30 September 2014, the Archbishop wrote to the plaintiff noting that he had recently performed Mass. He advised him that his conduct was in defiance of a clear directive which he had given previously. The Archbishop reiterated that, until further notice, he was forbidden to celebrate any public Mass, including at a home. [64]

    64. CB 256

54. On 16 December 2014, the plaintiff’s solicitors wrote to Mr Dunford QC indicating that they intended to commence proceedings and stating that they also wished to take advantage of the review provided by clause 44 of Towards Healing. They noted that clause 44.5 allowed him to accept a review outside the three month time limit and requested confirmation that would accept the review within 28 days of the conclusion of the legal proceedings. [65]

    65. CB 258

55. On 17 December 2014, an executive officer wrote on behalf of Mr Dunford QC advising that he would consider an application for an extension of time to apply for review on its merits if and when such an application was made. [66]

    66. CB 260

56. This response appears to have prompted the plaintiff to lodge a full review on 18 December 2014. On that date, the solicitors wrote a letter to the Director and Mr Dunford QC making an application for review. Their letter included various complaints about the assessment, including that: there were findings in respect of allegations for which notice was said not to be given; there was a failure to provide adverse material; there was alleged failure to accord procedural fairness when the Assessors allowed themselves to be briefed by the Director; there was a failure to provide an opportunity to make submissions; the Assessors wrongly accepted a direction from the Director; the Assessors wrongly proceeded to an assessment in circumstances where the plaintiff was psychiatrically unwell; the Assessors allegedly failed to provide material to enable an application to review, and the process was not transparent. Detailed submissions were made in support of those grounds.

57. As noted, these proceedings were commenced in December 2014. Although no undertakings had been given by the parties it appears that neither the review nor any processes under canon law or otherwise have been advanced since the proceedings commenced.

58. In his Statement of Claim the plaintiff pleaded that his “reputation has been irreparably damaged by the Assessment Report”. [67] However, the Director and the Archbishop did not admit that fact. [68] The evidence did not address the dissemination of the Assessors’ Report. Having regard to clause 40.9.3 of Towards Healing I infer that some version of the report and its findings were disseminated to the complainant.

    67. CB 39 at [256]

    68. CB 52 at [30]; CB 60 at [36]

The Assessors’ Report

83. The “Executive Summary” of the Assessors’ Report described the complaint against the plaintiff in the same terms as that noted above (at [70]) but also noted that there was a complaint about inaction by the “Brisbane Catholic Church Authorities’ response” to complaints made between November 2013 and February 2014. [69] The report next summarised the complaint, the operations of Towards Healing and the background to the investigation. Under the heading “Assessment Methodology”, the Assessors stated that, after their appointment, they wrote to the Archbishop seeking “any documents about previous investigations concerning this complaint” and details of any previous allegations of misconduct etc and employment history pertaining to the plaintiff. It seems likely that the Assessors obtained the Vitality Report in response to this request. One of the plaintiff’s complaints is that the taking of this step was inconsistent with so much of Towards Healing that required the Assessors to be “independent”.

    69. CB 76

84. Section G of the Assessors’ Report is headed “Assessment Analysis & Outcomes”. The first thirteen paragraphs of this section contain a discussion of the course of the enquiry, a summary of the evidence, and a brief summary of the evidence that was available. However, included in this portion is the statement “[f]or a detailed analysis of the evidence adduced by assessors, please find all relevant material attached.” Neither version of the Assessors’ Report that was provided to the plaintiff had any such attachment. It was not tendered at the hearing of these proceedings.

85. The next eleven paragraphs in this portion of the Assessors’ Report addressed the plaintiff’s psychiatric condition. The report summarises the conclusions of the Vitality Report as well as the report of Dr Martin dated 25 July 2014, both of which have been referred to above. Based on that material, the Assessors expressed the opinion that certain conclusions were “open”, namely, that the allegations made against the plaintiff were the primary cause of his depressive illness, that the plaintiff was able to take part in an interview, that even if he was willing to take part in an interview he would have been unable to give a reliable account and would not be able to recall significant facts pertinent to the enquiry. [70]

    70. CB 88 at [42]

86. The Assessors then state:

“The Assessors take no adverse inference from [the plaintiff] not taking part in an interview. It is after all, his right not to do so. However, as the clinical evidence shows he is able to take part in an interview, his actions have indicated an intention not to take part in an interview with Assessors.”

The Assessors then noted the contents of the letter of 1 August 2014 and continued.

“On 7 August Assessors were provided with an updated report from Dr Martin concerning the mental health of [the plaintiff], stating, in part, that [he] would now not be able to take part in an interview with Assessors. On 8 August 2014 [the Director] directed the Assessors to complete their report without interviewing the [plaintiff].”

87. The Assessors recorded that they were “currently left” with the plaintiff’s denials which “predate[d] any medical advice of adverse mental ability.”

88. The next nine paragraphs of this section of the report address the question as to whether the plaintiff has “been denied natural justice in the investigation of this matter”. [71] The Assessors recorded that opportunities were afforded to the plaintiff to take part in an electronically recorded interview, their view that it was incumbent to complete the assessment within a reasonable time and that the undisputed medical evidence was that the plaintiff was not likely to add any probative evidence in the allegations made. The Assessors concluded that the plaintiff had been afforded procedural fairness.

    71. CB 88

89. The next section of the Assessors’ Report is entitled “Conclusions/Findings”. Eleven such conclusions or findings were recorded. First, the Assessors accepted that the plaintiff exercised pastoral care for the complainant and his family. Second, the Assessors accepted that the evidence of the complainant’s wife was truthful and a reliable. The third, fourth and fifth conclusions should be set out in their entirety. The Assessors found: [72]

“That [the plaintiff] embarked on ‘grooming’ activities to initiate a sexual relationship with the Complainant’s wife, a vulnerable person, utilising his position in the Church to do so. That he took advantage of her loneliness and the faith placed in him by the Complaint and his wife at a time when her marriage was in difficulties;

That [the plaintiff] had sexual intercourse with the Complainant’s wife initially on the first occasion without her consent;

That the actions of [the plaintiff] constitute abuse within the meaning of that term as defined in the Towards Healing Protocol.”

72. CB 90

90. The sixth conclusion was that the evidence of the complainant’s wife was corroborated by other evidence, specifically, the letters from the plaintiff to her, referred to above.

91. The seventh conclusion was that the plaintiff had attempted to “frustrate the Assessors task of investigating the matter” by contacting the author of the second statement and attempting to pay her to deny the allegations made against him.

92. The eighth conclusion was that the author of that statement was a truthful and reliable witness.

93. The ninth conclusion was that the complainant had suffered as a result of the plaintiff’s conduct. The tenth conclusion was that in accordance with clause 40.9.2 of Towards Healing, the actions of the plaintiff were a “very serious violation of the integrity of the pastoral role”.

94. The eleventh conclusion was that the Assessors were not satisfied about the second aspect of the complaint noted in [83] above.

95. The last section of the Assessors’ Report is entitled “Recommendations”. Only two parts are of present relevance, the first being a recommendation that “consideration be given to further restricting [the plaintiff’s] unsupervised contact with church attendees”. The other stated as follows:

“The investigation by the Assessors has produced evidence on oath of two serious sexual assaults on women who were under the pastoral care of [the plaintiff]. [The plaintiff] has demonstrated predatory behaviour using his position in the church for sexual gratification. He has also demonstrated that he is willing to pervert the course of an investigation of his actions by attempting to offer an inducement to witnesses to lie to Assessors. There is a course of conduct that is prima facie criminal in his actions. Those persons responsible for [the plaintiff] have a duty to take appropriate action.” [73]

73. CB 91 at [62]

96. Two matters should be noted about this paragraph at this point. First, it is highly doubtful whether any attempt to induce a witness to alter their evidence before a domestic body such as Assessors acting under Towards Healing is in and of itself criminal behaviour.

97. Second, one part of the complaint of a breach of natural justice on the part of the Assessors is an alleged change in the nature of the complaint made against the plaintiff, from one that he exploited his position to have sex with the complainant’s wife, to one that ultimately became a complaint that he had committed serious sexual assaults on two women.

The Church

98. In the submission to the Royal Commission noted at [38] the “Truth Justice and Healing Council” stated: [74]

“..there is no single or discrete entity which is ‘the Catholic Church’, either in Australia or worldwide .… rather, the Church as a community of faith is made up of an intricate complex of disparate groups or individuals …. there is no vertical ‘structure’, comparable or analogous to those employed by most large companies, whereby reporting lines and chains of command flow from a board of directors, and/or a CEO, down through layers of senior and middle management, and on to various levels of general staff … each individual diocese (through its bishop) and each individual religious institute (through its respective leader) is autonomous and independent...”

74. CB 321

99. The statement is consistent with the judgment in Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117 (“Ellis”). [75] Thus, instead of a single legal entity representing or constituting the Church, it consists of a number of different legal entities who engage in various activities of a religious, educational, pastoral, cultural and social nature. They do so in a broadly coordinated manner while sharing a common faith, although they no doubt have their disagreements. The relevant entities involved include the office holders, clergy, the laity, the incorporated persons who hold church property and the persons they employ and entities they control or own.

    75. While the events subject of these proceedings took place in Queensland, there is no reason to conclude that the position in Queensland is any different. There are a number of Queensland statutes that have a similar effect to the Roman Catholic Church Trust Property Act 1936 considered in Ellis: Roman Catholic Church (Corporation of the Sister of Mercy of the Diocese of Cairns) Land Vesting Act 1945; Roman Catholic Church (Incorporation of Church Entities) Act 1954; Roman Catholic Church (Northern Lands) Vesting Act 1941 and Roman Catholic Church Lands Act 1985)

100. This description of the Church does not deny the existence of a hierarchy, perhaps a strict one. However, it begs the question as to what foundations that hierarchy rests upon. In Scandrett v Downing (1992) 27 NSWLR 483 (“Scandrett”) at 521ff, Priestley JA traced the history of the legal status of the Church of England in this country. His Honour observed (at 539) that, contrary to the position in the United Kingdom, the law of the Church of England was not “State law”. [76] His Honour also noted that in response legislation was enacted in various Australian states that included provisions purporting to make the canons and rules of the Church “binding on the Bishops, clergy and laity.” [77] However, even those rules and canons were held not to be enforceable in a civil court unless a question affecting Church trust property arose (at 513C and 562E per Priestley JA with whom Hope AJA agreed at 566). Thus, in Scandrett it was held that a civil court had no jurisdiction or power to enforce a rule purporting to preclude the ordination of women. No question affecting trust property arose.

     76. citing Ex parte; The Rev George King (1861) 2 Legge 1307

     77. Schedule 2 to the Anglican Church in Australia Constitution Act 1961 (NSW)

99. In Scandrett (at 513B) Priestley JA traced the origins of the phrase “consensual compact” which was used to describe the relationship between adherents to the faith of the Church of England. His Honour described it in the following terms:

“In my opinion the parties to the consensual compact upon which the plaintiffs rely are bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of State courts of law. The belief of Church members is that they are all one in Christ Jesus; an acceptable way of describing the Church, as I understand it, is that it is constituted by this unity.

The consensual compact is thus based on religious, spiritual and mystical ideas, not on common law contract. It has the same effect as a common law contract when matters of church property become involved with the other matters dealt with by the consensual compact. I do not think the claims made in this case get out of the area of the consensual compact which does not have the legally binding effect here relied on.” (emphasis in original)

102. Later in Scandrett, at 522, Priestley JA instanced the treatment of clergy under ecclesiastical law in the United Kingdom in a manner which affects Church property as a circumstance in which the rules of the Church might be litigated in a civil court:

“Taking a simple example, a clergyman deprived of his living by sentence of the Church court might refuse to leave the house he was occupying as one of the incidents of his living. The only lawful way then for the Church to recover the Church property would be to take proceedings in a secular court. The clergyman might then seek to defend the proceedings by asserting the sentence of deprivation had been wrongly pronounced. Thus, incidentally, a wholly spiritual question might need to be considered in a secular court. The trust law rules would also be involved in any such proceedings because the property necessitating the resort to the civil court would invariably be trust property of some kind, and the trustee as legal owner of the property would need to be a party to the proceedings.”

103. In Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R 26 (“Clark”) at 33 Williams J referred to the passage from Scandrett set out at [101] and stated that the “position in law [is] no different so far as the Roman Catholic Church is concerned”. Clark was cited with approval in Ellis at [42] per Mason P with whom Ipp and McColl JJA agreed.

104. Thus, in perhaps many respects, the maintenance of the Church hierarchy depends on various persons and organisations that make up the Church willingly subjecting themselves to the authority of others. In other respects, such as dealings with employees or Church property, there are legally enforceable powers and rights which can be deployed to give effect to decisions made, the exercise of which can be scrutinised in a civil court. However, as I will explain this case does not involve the deployment of such powers or rights.

The Archbishop, the Assessors and a Priest

105. It follows from the above analysis that in any case involving the potential disciplining or sanctioning of a priest of the Catholic Church it is necessary (although not necessarily sufficient) to identify the relevant relationship between the priest and the participants in the process leading to the imposition of such a sanction, then determine whether it has any legal characteristics and, if so, what they are. In view of the manner in which the plaintiff’s case was presented, there are only two relationships of potential significance to the determination of the issues in this case, namely, that which exists, if any, between the Assessors and the plaintiff and that which exists between the plaintiff and the Archbishop.

106. It was expressly disclaimed by Senior Counsel for the plaintiff, Mr Muddle SC, that the plaintiff was an employee of anyone, including the Archbishop. It was also disclaimed that there existed any contractual relationship between the plaintiff and the Archbishop (or anyone else). As discussed below, it was specifically denied that the plaintiff had ever agreed to be bound by Towards Healing much less that it had any contractual force. [78]

     78. T 11/10/2016 at p 3

107. It follows that the only “relationship” that existed between the plaintiff and the Assessors was that, if any, which follows from the bare fact that the Assessors were engaged by others to prepare a report that potentially reflected adversely upon the plaintiff. In the ordinary course it is only the law of defamation that regulates their conduct vis‑à‑vis the plaintiff.

108. The material available to the Court concerning the relationship between the priest and the Archbishop was limited to certain admissions on the pleadings and a legal advice from a Dr Rodger Austin placed before the “Special Commission of Inquiry into Matters Relating to the Police Investigation of Certain Child Sexual Abuse Allegations in the Catholic Diocese of Maitland, Newcastle”.

109. Thus, it was admitted on the pleadings that the plaintiff was incardinated in the Catholic Archdiocese of Brisbane and it was common ground that occurred in November 1996. The Amended Statement of Claim (“ASOC”) also pleads that the relationship between an archbishop and a priest is governed by canon law. [79] The Archbishop admitted this paragraph. [80] In his defence, the Director provides a detailed response to this allegation including that “the relationship between a priest and his bishop is governed primarily by the doctrinal teaching of the Church and the law of the Church is established upon that teaching”. [81]

     79. CB 15 at [95]

     80. CB 57 at [16]

     81. CB 48 at [18(b)]

110. Paragraphs 99 and 100 of the ASOC plead that following ordination a “priest requires ‘faculties’ in order to exercise his priestly ministry in the diocese in which he is a incardinated” and that a “faculty is an empowerment to act”. The Archbishop admitted these paragraphs. [82] Paragraph 101 pleads that “[t]his status can be lost only through death, or the procedures established in canon law, namely dismissal or dispensation”. [83] The Archbishop denied this paragraph. [84] The Director did not admit those paragraphs and instead pleaded, inter alia, that “a priest’s faculties may be withdrawn by his bishop while the priest remains in the clerical state”. [85]

     82. CB 57 at [18]

     83. CB 16

     84. CB 57 at [19]

     85. CB 50 at [18(k)]

111. This aspect of the Director’s defence, namely, that certain faculties may be withdrawn by a priest’s bishop without having to comply with any procedures specified by canon law, was ultimately adopted by all the parties. It was agreed that the removal of a priest’s clerical status and punishment for an offence against Church law was governed by canon law but that the potential removal of some of the plaintiff’s faculties was at the discretion of the Archbishop. To that end, both Mr Muddle SC and Senior Counsel for the Director, Mr Lancaster SC, referred to the following part of Dr Austin’s advice as reflecting the correct position: [86]

     86. CB 515 at [9] to [10]

“9.   No man who is a member of the Catholic Church can be ordained a priest unless, as stated in CIC83 canon 265, he is incardinated into a diocese.

Incardination is ordinarily established by ordination as a deacon. Incardination is the permanent attachment of an ordained minister to the diocese to whose service he has committed himself. Incardination can only be lost in accordance with the procedures established in the Code of Canon Law.

A priest, whilst remaining incardinated in his own diocese, may be permitted to exercise his priestly ministry in another diocese only in accordance with the norms of canon law.

“Incardination constitutes a spiritual bond as well as an authentic legal bond. CIC83 canon 275 §1 provides that “since all clerics are working for the same purpose, namely the building up the body of Christ, they are to be united with one another in the bond of brotherhood and prayer. They are to seek to cooperate with one another, in accordance with the provisions of particular law”.

Incardination into a diocese establishes obligations and rights incumbent upon the priest and the diocese. A priest is “bound by a special obligation to show reverence and obedience to his diocesan Bishop” for he shares with the Bishop in the responsibility for the diocese. [CIC83 canon 273] He is obliged to accept and faithfully fulfil the ministry to which he is appointed by the diocesan Bishop. [CIC83 canon 274 §2] He is bound to reside in the diocese unless his absence is authorised [CIC83 canon 283]. A diocese is obligated to provide “remuneration [for the priest who is] dedicated to the ecclesiastical ministry” and “such social welfare he may need in infirmity, sickness or old age”. [CIC83 canon 281]

10.   It is the teaching of the Church that a priest is dependent upon the diocesan Bishop in the exercise of his priestly ministry. Subsequent to his ordination a priest requires “faculties” in order to exercise his priestly ministry in the diocese in which he is incardinated.

A faculty is an empowerment to act. Faculties are important in the pastoral ministry within a diocese. Some faculties are given by the law. For his ministry within the diocese, the priest is granted faculties by the diocesan Bishop. They provide the priest with the authorisation to perform certain functions and with the delegation to perform services usually reserved to a higher authority. A priest is not entitled to these faculties as they are freely granted by the diocesan Bishop.

The fact that a priest is incardinated into a diocese does not give him the right to be appointed to a specific ministry, such as a parish priest.” (emphasis added)

112. It was common ground that the reference to “legal bond” in this extract is to a legal bond under Church (or canon) law and that the phrase “given by the law” is also a reference to Church law. Otherwise, the emphasised extract confirms some faculties are conferred by canon law but that others are “freely granted” by the Archbishop and may be freely withdrawn. Examples of the latter form of faculties include the ability to exercise their priestly ministry and the ability to perform Mass, which was removed from the plaintiff by the Archbishop (see [77]).

113. In a submission filed during the course of the hearing [87] the plaintiff sought to identify the “faculties” at risk from action by the Archbishop as follows:

“2.   A priest requires ‘faculties’, which are an empowerment to act, in order to execute his priestly ministry in the diocese in which he is incardinated…

3.   The plaintiff’s faculties from the Archbishop include accommodation, a stipend, a fully maintained motor vehicle, a fortnightly allowance for household expenses and private health insurance. This is admitted by the Archbishop…

4.   Faculties are not a right for a priest, but are within the grant of his bishop... Further faculties can be disapproved or revoked by the local ordinary, who is the Archbishop.. Hence the … Archbishop may act on the Assessment Report so as to prevent or attenuate the plaintiff’s ministry, without proceedings under canon law…”

87. Plaintiff’s submission on jurisdiction (“PSJ”) dated 11 October 2016

114. Paragraph 2 of this submission accurately reflects the position agreed on the pleadings and the effect of Dr Austin’s report. Paragraph 3 incorrectly attributes the financial benefits that a priest receives as being conferred by the Archbishop. This was not admitted by the Archbishop. Instead, consistent with Dr Austin’s advice, the Archbishop only admitted that the plaintiff was provided with accommodation, a stipend and a fortnightly allowance from the Archdiocese of Brisbane, not the Archbishop. [88] Dr Austin’s advice indicates his entitlement to those benefits flowed from canon law. They are not a form of “faculties … freely granted by the Archbishop”.

     88. CB 5 to 6 paras [7] to [9]; CB 56 para [8]

115. Subject to one matter, none of the parties contended that any issue concerning canon law was relevant to either the justiciability of this dispute or the supposed breaches of procedural fairness that occurred in the determination of the complaint. Although canon law has its own guarantees of due process, canon law does not “translate automatically” into rules capable of enforcement in a civil court (see Ellis at [41]).

116. The one matter of exception arose in one part of the Archbishop’s supplementary submissions in which it was asserted that “while the plaintiff remains a priest of the Catholic Church, whether entitled to exercise ministry or not, the diocese in which he is incardinated is obligated under canon law to provide for him”. They annex an extract from the Code of Canon Law including “canon 281” referred to in the above extract from Dr Austin’s report. In his written submissions in reply dated 19 October 2016, the plaintiff disputed the entitlement of the Archbishop to rely on extracts from canon law in reply and asserted that it is a form of foreign law “requiring proof in a common law court”. [89] They otherwise contend that “it is open to the Court to conclude that it is unclear to what extent the Plaintiff will continue to be remunerated if he is forbidden to exercise his ministry by the Archbishop”.

     89. Plaintiff’s reply submissions 19 October 2016 at [15] to [16]

117. I accept that by annexing canon 281 and referring to it, the Archbishop’s supplementary submissions effectively sought to tender further evidence. In the face of opposition by the plaintiff I reject that tender. However, the evidence on the topic rises no higher than what is stated by Dr Austin in the above extract. The effect of that material and the pleadings is that the plaintiff has not established that any of the financial benefits or emoluments he receives are at jeopardy from the making of the Assessors’ Report or any decision by the Archbishop to remove his faculties that may be based on that report.

118. In the end result, and contrary to the submissions in [113], the only “faculties” of the plaintiff that it has been shown are potentially jeopardised by the Archbishop taking action based on the Assessors’ Report are those referred to in paragraph 10 of Dr Austin’s advice, none of which are of a financial character.

119. In the absence of any contractual power, what authority does an Archbishop possess to remove those faculties exercised by a priest that are not conferred by canon law? Such faculties may involve the enjoyment or use of property under the Archbishop’s effective control but no power of that kind was pointed to in this case. Instead, the only answer permitted by the evidence is that in seeking and accepting ordination a priest, such as the plaintiff did, one freely and voluntarily subjects themself to the authority of the Archbishop to withdraw those faculties not conferred by canon law. In legal analysis, the relationship between a priest and an Archbishop, or at least this aspect of their relationship, is not contractual but a pure voluntary one based on their shared Catholic faith and acceptance of the authority of its institutions. This is either analogous to, or an instance of, the “consensual compact” referred to by Priestley JA in Scandrett.

The Legal Status of Towards Healing

120. Before determining whether this matter is justiciable, it is necessary to ascertain the legal status of Towards Healing.

121. Paragraph 91A of the ASOC pleaded that the “language of Towards Healing manifests an intention to affect legally binding rights and obligations, in particular, those of the plaintiff and the [Archbishop], and the Archdiocese of Brisbane”. Paragraph 91B pleads that the plaintiff has a “right to procedural fairness under Towards Healing”. These paragraphs were denied by the Director. In his defence the Archbishop admitted the paragraphs but his admission was qualified by a denial that such rights as the plaintiff may have under Canon Law are justiciable in a civil court and specifically denied that “Canon Law manifests an intention that the plaintiff be dealt with (in the Towards Healing process) according to Law, and that the plaintiff (in the Towards Healing process) be accorded due process”. [90]

     90. paragraphs 26 and 27 of his defence

122. Whether this amounts to an admission that the Towards Healing document was legally binding as between the Archbishop and the plaintiff in a manner that would be recognised by this Court is unclear and does not matter. In his opening address Mr Muddle SC disclaimed any suggesting that Towards Healing has a contractually binding effect on the relationship between the plaintiff and the Archbishop. He stated: [91]

“It's important to note at the outset that this is not a club case. This is not a case where a member has contractually bound himself to a set of rules or articles. Towards Healing is not something which the plaintiff has ever agreed to or acquiesced in, nor is that even alleged by either of the active defendants. Nor is Towards Healing part of the law of the church, that is to say canon law. It is apparent from the pleading that all parties are in furious agreement that Towards Healing is not part of canon law.

Nonetheless, where a decision maker sets out a process to be followed and fails to do so in a material way, there will from that fact alone be a denial of natural justice. Whilst certiorari will not run against a domestic tribunal, such as the one concerned in this case, the plaintiff's interest is sufficient to support the making of declarations as to any established denial of natural justice, and injunctions to restrain any threat to act on a report or finding which denied the plaintiff natural justice, or which departed from the declared procedure.”

91. T 11/10/2016, p 3

123. In the course of their submissions, Mr Lancaster SC and Counsel for the Archbishop, Mr Skinner, each embraced the first part of this submission but not the second. In the circumstances where the relationship between a priest such as the plaintiff and the Archbishop is as described in [119] then an acceptance of the first part of this extract means that Towards Healing represents no more than a voluntary statement by the Archbishop that its principles will be respected and procedures followed before he will consider exercising his authority to remove those faculties that he, and not Canon law or the Diocese, has conferred on the plaintiff on the ground that the plaintiff has committed abuse.

124. The second part of this opening statement identifies the possible status of Towards Healing as a document affecting the content of any duty of procedural fairness that might be owed to the plaintiff. To that end, Mr Muddle SC sought to rely on the principle stated by Brennan CJ, Dawson and Toohey JJ in Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 609 to the effect that “[i]f the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power” (although whether there is such a breach may depend upon whether ultimately there was any practical unfairness: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ).

125. In his written and oral submissions, Mr Muddle SC contended that numerous aspects of the process that led to the Assessors’ Report did not conform with Towards Healing (and were thus contrary to the Archbishop’s “declared procedure”) and were otherwise procedurally unfair. A number of the complaints were made to Mr Dunford QC (see [80]) and have already been adverted to (at [83], [84] and [97]). The alleged breaches included the failure to inform the plaintiff of the nature of the complaint and provide him with sufficient details of the complainant and the other person referred to in [59] to enable him to respond, [92] the alleged standing aside of the plaintiff without his being given notice of that decision, [93] failing to cease the investigation when it became apparent that it was alleged that the plaintiff had sexually assaulted the complainant (and the other witness) [94] and failing to provide him with that part of the Assessors’ Report referred to in [84].[95]

     92. Plaintiff’s Outline of Submissions dated 5 October 2016 at [43(a)]

     93. Plaintiff’s Outline of Submissions dated 5 October 2016 at [43(d)]

     94. Plaintiff’s Outline of Submissions dated 5 October 2016 at [43(e)]

     95. Plaintiff’s Outline of Submissions dated 5 October 2016 at [43(o)]

149. Why should the position be any different if the “John Doe” referred to by Brennan J in the above passage prepares a report pursuant to the rules of a body that is “social, sporting, political, scientific, religious, artistic or humanitarian in character” which of themselves are not legally binding and in respect of which no proprietary rights are enjoyed? A party seeking either injunctive or declaratory relief can acquire no greater equity (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [8] per Gleeson CJ), because a report harming their reputation was prepared under the rules of an organisation that have no binding effect compared with someone doing it on their own account.

150. In contending that the mere affectation of his reputation by the Assessors’ Report is a sufficient basis to enable the Court to review the manner in which they conducted their inquiry, Mr Muddle SC also relied upon the endorsement by the plurality in Ainsworth of a statement by Jessel MR in Fisher v Keane (1879) 11 Ch D 353 (“Fisher”) in the above passage at [147]. Fisher was a “club case” in that the plaintiff was expelled from the “Army and Navy Club” and deprived of the privileges of membership for an alleged disciplinary infraction. The basis of the Court’s authority to intervene in Fisher was not stated although the repeated reference to the “rules” of the club in Jessel MR’s judgment are suggestive of a contract and otherwise the denial of access to the club’s premises appeared to involve an interference with rights of enjoyment of property. The latter basis for interference was all but confirmed by the same judge, namely, Jessel MR, in Rigby v Connol (1880) LR 14 Ch D 482 in which he held that there was no jurisdiction to review an expulsion from a trade union as the “foundation of the jurisdiction...[was] that some right of property to which he is entitled has been taken away from him…[that being] the foundation of the interference of the Courts with regards to clubs …” (at 487 to 488).

151. The endorsement of Fisher by the plurality in Ainsworth provides no support for the proposition that the potential for a domestic body to conduct an inquiry and publish a report that adversely affects someone’s reputation is of itself sufficient to give a civil court authority or jurisdiction to review the manner in which the inquiry was conducted. However, Ainsworth’s endorsement of Fisher may provide support for a narrower proposition, namely, that in cases where the relevant sanction is imposed or the report prepared pursuant to rules that have contractually binding effect, then the potential damage to reputation is a sufficient form of injury to warrant the Court’s interference.

152. Mr Muddle SC also relied on the following obiter statement by the Court of Appeal of Western Australia in Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 102 (“Rush”) at [30] and [37]:

“30.   In Skelton's case, Chesterman J noted that there were many cases in which courts have intervened where exclusion or suspension from membership of a club or association had occurred in breach of the organisation's rules or of natural justice. However, as his Honour noted, all of those cases were predicated upon the person involved suffering some diminution of rights of property, livelihood or trade. To that category of case may be added cases where a person's reputation is damaged: see Starke J in Cameron v Hogan at 383, Plenty v Seventh-Day Adventists Church of Port Pirie (1986) 43 SASR 121 at 124 and Carter v NSW Netball Association [2004] NSWSC 737 at [107].

…

37.   In the particular circumstances of this case, in the absence of any property, income or reputational interests, this Court has no jurisdiction to decide issues arising out of the consensual but non-contractual relationship between the parties." (emphasis added)

154. The reference to the judgment of Starke J in Cameron was to the following passage at 383:

“Has Hogan, however, any redress in a Court of law for such unauthorized act? It may be unlawful in the sense that it is void … But to give him a right of relief at law or in equity, Hogan must establish some breach of contract with him, or some interference with his proprietary rights or interests. As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club. "Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property" (Murdison v Scottish Football Union (1896) 23 R (Ct of Sess) 449, at pp 466, 467).” (“Murdison”) (emphasis added)

155. The first emphasised portion of this passage states a basis for interference with the affairs of a voluntary organisation in a manner consistent with the statement of the plurality in Cameron set out above. However, it seems that the Western Australian Court of Appeal in Rush relied on Starke J’s approval of a quote from Murdison v Scottish Football Union (1896) 23 R (Ct of Sess) 449 (“Murdison”) as apparent support for the proposition that a mere affectation of reputation was sufficient to justify the Court’s intervention. In my respectful opinion, neither Murdison, nor Starke J’s approval of Murdison in Cameron, is support for that contention.

156. In Murdison, the “pursuer” [100] complained that he had been slandered by a referee of a soccer match who wrote a complaint to a committee of the Scottish Football Union (the “Union”) that the pursuer had called him “a bloody little brute”. The committee upheld the complaint, passed a resolution that he be censured and ordered him to apologise. The findings of the committee and the resolution were published in certain newspapers.

     100. Ie the plaintiff

157. The pursuer sued the Union, certain members of the committee and the referee. He raised 13 “issues”, the first eight of which were actions for slander against the referee in relation to the letters of complaint and his evidence to the committee and the next four of which concerned allegations of slander against the Union and the committee members. The thirteenth issue alleged that the pursuer’s suspension from football was “wholly ultra vires” (at 460). The Lord Ordinary granted the Scottish equivalent of summary dismissal in relation to the first twelve issues but allowed the thirteenth to go forward (at 461).

158. In Murdison the Court of Sessions maintained the dismissal of the issues pleaded against the referee. However, in relation to the four issues alleging slander against the Union and the members of the committee, the Court of Sessions allowed the action to proceed against the committee members but not the Union (at 464 to 465). The Court overturned the decision to allow the thirteenth issue to proceed to trial.

159. In relation to the action against the members of the committee for slander, the Court of Sessions noted that they may be able to claim qualified privilege although that “may depend upon the rules of the society and upon the extent to which the pursuer has submitted himself to the censure and discipline to be exercised by the governing bodies of the society” and observed that the “pursuer has averred against the committee conduct with reference to their treatment of him [that was] unfair and irregular” (at 465).

160. In relation to the action against the Union for slander, as the action against the committee members alleged that their action was unauthorised, it was held that the Union could not be liable and the “only case that remains is one against the individual members of the committee … [but that] it will be of course be necessary to prove against each of them that he individually was responsible” for the publication (at 466).

161. In dealing with the thirteenth issue, their Lordships queried “what [was] the legal right of which the pursuer complains” (at 466.6) in relation to the resolution to suspend him, noting that the pursuer “disclaims any intention to take an issue of slander upon [the] resolution”. Their Lordships then stated (in a passage that includes the part quoted by Starke J in Cameron set out at [154]) as follows (at 466 to 467):

“[The pursuer] says that he desires only an issue which would give him reparation for the substantive wrong done to him. I confess I am unable to see what the substantive wrong was. All that he says about it is that it was illegal and incompetent, and that its effect is to prevent him from doing so. It must either mean that the Football Union as a body decline to play, or that they advise their members not to play. If the latter is the true meaning that is just an innuendo of defamation and nothing else. If he complaints not of the defamation but of the fact that people would not play with him, that does not appear to me to be a legal wrong or an invasion of any legal right. Nobody has a right which he can enforce at law to compel other people to play a game of football with him. If there be an agreement between them to play a game together, that is not an agreement which the law will enforce. Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property. No averment of that kind is made. As to the first kind of injury, as I have already stated, the pursuer disclaims the idea of putting an issue upon that ground of charge." (emphasis added)

162. The action that the pursuer disclaimed as referred to in this passage was an action for defamation or slander. It was that type of action which this passage contemplated might constitute the “civil wrong”. A slander action in these circumstances might constitute “a civil wrong from the refusal to carry out such an agreement” because in such an action the question as to whether the publication was published on an occasion of privilege may depend on whether there was an agreement of the kind referred to between the person injured and the defendant(s) and whether it was complied with. As noted, the Court of Sessions had earlier stated that the qualified privilege claim of the members of the committee in relation to the ninth to twelfth issues raised by the pursuer in Murdison depended “upon the rules of the society”, “the extent to which the pursuer has submitted himself to the censure and discipline to be exercised by the governing bodies of the society” and the allegations that they had engaged in unfair and irregular treatment.

163. Considered in context, the passage from Murdison cited by Starke J in Cameron above was not support for the proposition that a mere affectation of reputation by decisions of persons that agree to associate for “scientific or philanthropic or social or religious purposes” is sufficient to confer on a civil court jurisdiction to determine whether those decisions were made in accordance with the rules they agreed upon. Instead, in the case of “injury ... to reputation”, the reference to a “civil wrong” in the quoted passage from Murdison is to a defamation action and the balance of the passage merely contemplates the existence of any such agreement and whether it was complied with as being issues in such an action.

Carter and Sturt

164. Mr Muddle SC placed significant reliance on the judgment of Palmer J in Carter v NSW Netball Association [2004] NSWSC 737 (“Carter”) which was cited in the above passage from Rush. The plaintiff in Carter was a netball coach acting in a voluntary capacity. The plaintiff challenged a decision banning her from membership of the defendant following a hearing by its disciplinary committee into allegations that amounted to no more than “excessively enthusiastic coaching” (at [2]). Following that finding a notification was purportedly made under former s 39 of the Commission for Children and Young People Act1998 (NSW) (“CCYP Act”). Former s 39 required an “employer” to notify the Commission of the name and other identifying particulars of any employee against whom relevant disciplinary proceedings have been completed by the employer where “employer” and “employment” were defined to include volunteer work such as coaches (Carter at [58ff]). The plaintiff was notified that her name had been “registered” and if she sought child related employment in the future she would need a clearance certificate (at [4]). His Honour found that the decision had “damaged the Plaintiff’s reputation in her community” (at [107]).

165. In determining that the claim was “justiciable”, Palmer J noted Cameron and cases concerning affectations of a person’s livelihood (including Mitchell and AFL v Carlton) but noted that the plaintiff did not seek to protect any “right of property” and her “livelihood” did not depend on membership of the defendant (Carter at [100] to [104]). Instead, his Honour quoted from Ainsworth, including the passage noted above (at [147]), and concluded (Carter at [109]):

“In my opinion, in the present case the direct effects of the Defendant’s decision on the Plaintiff’s reputation and its indirect effect on her livelihood, by reason of notification under s.39 CCYP Act, is sufficient to warrant the exercise of the Court’s discretion in favour of intervention, if the Plaintiff makes out her complaint.”

166. Three points should be noted about this conclusion and Carter generally.

167. First, the only basis in Carter for the finding that the dispute was justiciable by reason of the capacity of the decision to affect the plaintiff’s reputation was the decision in Ainsworth. For the reasons already stated I respectfully consider that involves a misreading of the effect of Ainsworth in this context.

168. Second, the exercise of jurisdiction in Carter may nevertheless have been justified by reference to the material suggesting an effect on the plaintiff’s livelihood from the interaction between the disciplinary finding and the CCYP Act (or if the rules governing the plaintiff’s suspension were contractual in nature). In that respect Carter was similar to Field.

169. Third, in any event, in circumstances where a statute interacts with the disciplinary rules of a domestic body, then far more solid bases for jurisdiction arise. Thus, in Carter, prima facie there seems no reason why the plaintiff could not have sought a declaration that there was not a valid notification under s 39 of the CCYP Act and not just because her alleged actions did not amount to “child abuse” as defined (see Carter at [134] to [145]) but also because the “relevant disciplinary proceedings [had not] been [properly] completed by the employer” within the meaning of s 39(1) of the CCYP Act.

170. In Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 at [31], Brereton J referred to this aspect of Carter with approval but no question of an effect on reputation was raised by that case (at [32]). Carter was followed by White J in his interlocutory decision in Abela v Royal New South Wales Canine Council Limited trading as Dogs New South Wales [2015] NSWSC 242 at [45] and Liverpool Touch Football Association v New South Wales Touch Association Incorporated [2014] NSWSC 1553. In Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265 at [101], Hallen AsJ referred to the above passage from Rush but found that the decision challenged affected the plaintiff’s enjoyment of property (at [104]).

171. Carter was also followed by Sackar J in Sturt & Anor v The Right Reverend Dr Brian Farran, Bishop of Newcastle and Ors [2012] NSWSC 400 at [162] to [163], in which two Anglican priests challenged disciplinary action against them, although his Honour also found that disciplinary regime had contractual effect (at [146]).

Plenty and Harrington

172. The other authority cited in Rush was Plenty v Seventh-Day Adventists Church of Port Pirie (1986) 43 SASR 121 (“Plenty”), which was an appeal from a decision striking out a Statement of Claim challenging a decision terminating the plaintiff’s membership of the Seventh‑Day Adventist Church. Each of the members of the Full Court allowed the appeal. In doing so, they cited Starke J’s approval of the passage from Murdison noted above as authority for the proposition that it was a sufficient basis to establish jurisdiction if the relevant decision simply affected a person’s reputation (at 124 per Thomas J, at 139 per Mathieson J and at 143 per Olsson J). That said, Plenty is only authority for the proposition that a challenge to an adverse decision of a domestic body or tribunal that does not affect the contractual, property rights or livelihood of a person is sufficiently arguable to proceed to trial if it affects that person’s reputation.

173. In any event, this aspect of Plenty was effectively doubted by a recent decision of the Full Court of the Supreme Court of South Australia, namely, Harrington v Coote (2013) 119 SASR 152 (“Harrington”). In Harrington, Kourakis CJ (at [19] with whom Peek J agreed at [183]) doubted the correctness of so much of Sturt that held that the mere capacity of a church’s investigative body to affect the reputation of a member of its clergy rendered a dispute about the investigation justiciable. His Honour stated (at [19] to [20]):

“In Sturt v Bishop of Newcastle … Sackar J found that because proceedings under the relevantly similar Professional Standards Ordinance applicable in Newcastle in New South Wales, had the capacity to affect the reputations of the members of the clergy under investigation, a dispute about the procedural fairness accorded to them in that investigation was justiciable. It is not clear to me how the effect on the personal reputations of members of the clergy makes such a dispute justiciable. Of course if there are underlying property rights or other legally binding agreements conferring a right to a fair hearing, it is not necessary to rely on the effect on personal reputations of the hearing.

There may be an obligation imposed by the common law on associations and organisations to comply with the rules of the organisation and to accord procedural fairness in investigations which may affect a person’s reputation even if there is no underlying legal right or interest in property [citing inter alia AFL v Carlton at 576 to 587 and Plenty].” (emphasis added)

174. The first emphasised portion of this passage and the balance of the reasoning in Harrington is consistent with Cameron. Kourakis CJ held that the relevant provisions of the National Anglican Constitution and the rules made thereunder had statutory or contractual force which made the controversy that arose in the investigation of a member of its clergy justiciable (at [20]). The second emphasised portion is consistent with the above analysis of Ainsworth in that it does not treat the effect of a domestic tribunal’s decision on a person’s reputation as sufficient to ground jurisdiction but instead states that, where jurisdiction is established, that is a matter that can affect the existence and content of an obligation to afford procedural fairness. In that respect, by citing Plenty as support for that proposition it limits its effect.

Reputation: Conclusion

175. In the end result I do not accept that Starke J’s approval in Cameron of the passage from Murdison is support for an extension of the principle stated by the plurality in Cameron to cases where the decision of the private body or tribunal does not rest upon contract and does not affect the property or the pursuit of a trade by the person concerned but only affects, or potentially affects, their reputation. To the contrary, the reference in the plurality’s judgment in Cameron v Hogan to the member of such a body “enjoying” under their rules “some civil right of a proprietary nature” is not apt to extend to a person’s reputation. They do not “enjoy” their reputation under the relevant body’s rules.

175. The proposition that there is no “judicial review” for a slander by a private body, even if acting pursuant to rules that do not have contractual effect, is supported by the passage from the judgment of Brennan J in Ainsworth noted at [148]. The plurality judgment in Ainsworth does not suggest to the contrary. Otherwise, there are conflicting views on this point expressed in dicta of two interstate intermediate Courts of Appeal (Rush and Harrington) and one interlocutory decision of an interstate intermediate Court of Appeal (Plenty).

176. While I accept that, in this State, Carter has decided to the contrary, I respectfully consider that decision to be clearly wrong in this respect. It reads too much into the judgment of the plurality in Ainsworth and fails to address the requirement in the plurality judgment in Cameron of the need to identify “some civil right of a propriety nature” being enjoyed under the rules of the relevant body. In any event, the decision in Carter was supportable by reference to its effect on the plaintiff’s livelihood and its interaction with statute. None of the other cases in this State which have cited Carter or Rush to which the Court was referred in this case addressed any challenge to this aspect of Carter and thus (understandably) did not add anything to its reasoning. Further, the invocation of Carter in those decisions was either obiter or the decisions were interlocutory. Finally the view I reach derives support from so much of Christie (discussed below at [187] to [188]) that decided that merely identifying an effect of a private body’s decision on a person’s “reputation and livelihood” is an insufficient basis to ground jurisdiction in the absence of a contract, an effect on property rights or a restraint of trade.

177. In the end result, I do not accept that this Court has jurisdiction to review a decision of a private body or tribunal which does not rest upon contract, does not affect the property or effect a restraint of trade but which only affects their reputation. Instead, in such cases the relevant person’s remedy is an action for defamation.

178. Thus, I do not accept that this Court has jurisdiction to review the Assessors’ Report or the Archbishop’s reliance on it in the manner contended for by the plaintiff on the basis that its publication had the potential to affect his reputation.

Jurisdiction: AFL v Carlton and Mitchell

180. As noted, Mr Muddle SC sought to rely on AFL v Carlton and Mitchell as establishing a basis for intervention.

181. In AFL v Carlton one of the respondents, Gregory Williams was a (successful) professional football player and the other (a then) successful club. Mr Williams had been suspended for placing a hand on an umpire but at first instance he had the suspension overturned. The AFL successfully appealed to the Full Court of the Supreme Court of Victoria. The AFL did not contend that the Court did not have authority or jurisdiction over the subject matter of the dispute or the parties.

182. The judgment of Tadgell JA in AFL v Carlton contains an extensive discussion of the basis upon which Courts will intervene with decisions of domestic bodies and, when they do intervene, the grounds of intervention. His Honour noted that no reliance was placed on breach of trust but instead the basis for the proceedings was the contract “to which the player, the club and the league are parties” (at 548). His Honour also noted that no reliance was placed on the doctrine of restraint of trade “although it might have been possible” (at 548) as a professional footballer is “engaged in trade for the purpose of the doctrine that renders unreasonable restraint of trade illegal” (citing Buckley at 548).

183. After discussing the authorities dealing with the reluctance of Courts to intervene in decisions of domestic tribunals, Tadgell JA concluded (at 550):

“Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category, I believe that there is no decision of a private or domestic tribunal with which the courts will refuse to intervene if interference be considered necessary for the attainment of justice. If a tribunal’s decision purports to owe its binding quality, for example, to a contract or a trust the courts, exercising jurisdiction in respect of contracts and trusts, will recognise that the making of the decision is to be consonant with the contract or trust before it is binding.” (emphasis added)

184. Mr Muddle SC sought to invoke the part of this passage that refers to there being “no decision of a private or domestic tribunal with which the courts will refuse to intervene if interference be considered necessary for the attainment of justice” as being a broad statement of the scope of cases reviewing decisions of domestic tribunals that are justiciable. I disagree. That phrase was limited by the words “in cases within that category”, being cases where the Court’s authority or jurisdiction was invoked because private rights were at stake. This is confirmed by the subsequent reference to courts exercising jurisdiction in respect of “contracts and trusts”. Properly read, this passage was not suggesting that any larger category of case was justiciable beyond what was stated in Cameron (and Buckley if restraint of trade was relied on). Instead, the significance of the reference in AFL v Carlton to the necessity to attain justice concerns the grounds of intervention in decisions of domestic tribunals. Thus, later in AFL v Carlton (at 552), Tadgell JA referred to courts which “assume jurisdiction to interfere with decisions of domestic tribunals” being required to treat their powers as “exercised defectively unless exercised honestly and in good faith” and otherwise subject to an “obligation to accord procedural fairness” (552). Similarly, both Hayne JA (at 567 to 568) and Ashley AJA (at 576 to 577) discussed the grounds upon which such a decision may be set aside, including the possibility suggested by Hayne JA that the body’s conclusion was unreasonable (at 567).

185. The position is no different with Mitchell. Mitchell involved a challenge to a disciplinary decision of a committee of a voluntary organisation on the basis that the charges were duplicitous and the findings said to support the determination of guilt were ambiguous. Under the heading, the “Court’s jurisdiction to intervene”, Ipp AJA (with whom Mason P and Stein JA agreed) stated that the “jurisdictional basis of the exercise of the court’s discretionary power to intervene in the affairs of voluntary tribunals has long been recognised” and that the “discretion will more readily be exercised where (as in the present case) a person’s livelihood substantially depends upon membership of the association” (at 246). His Honour noted that there was no “unanimity as to [the] source” of the Court’s power and noted that it had been “explained on varying grounds”, including breach of “the arrangements or contract between the parties”. His Honour then noted that it had been “further held” that “in certain circumstances, the Court has power to intervene, irrespective of the terms of any contract that may be applicable” (at 246). His Honour then cited the passages from the judgements of Tadgell JA and Hayne JA in AFL v Carlton discussed above.

186. As submitted by Senior Counsel for the Director, Mr Lancaster SC, Ipp JA did not state that a Court will intervene irrespective of the existence of a contract but instead “in certain circumstances, irrespective of its terms”. In the end result, Mitchell confirmed the applicability in this State of the discussion in AFL v Carlton of the grounds of intervention with a domestic tribunal. However, neither it, nor AFL v Carlton, represents an expansion of the basis upon which the Courts can intervene beyond Cameron and Buckley.

187. The above analysis is consistent with Christie. Christie was published on the day prior to these proceedings being listed for judgment. In Christie, the Court of Appeal held that this Court had no jurisdiction to intervene in a decision of a private body, namely the Agricultural Societies Council of NSW Ltd (the “Council”), to suspend the respondent from competing in horse events at agricultural shows. There was no contractual relationship between the Council and the respondent (at [4]). Instead the decisions of the Council were in the “ordinary course” accepted by the various “member show societies” (at [4]). The trial judge had upheld the Court’s jurisdiction to grant relief in respect of the decision because of its capacity to affect the respondent’s “ability to earn his livelihood and his reputation” and cited AFL v Carlton and Mitchell as support for that contention (Christie at [34]). However Meagher JA (with whom Ward and Leeming JJA agreed) stated (at [35]):

“Neither AFL v Carlton nor Mitchell decides that a Court may grant a private law remedy, such as a declaration or injunction, in relation to a challenged decision of a private tribunal other than in enforcing or protecting an underlying contractual or other entitlement recognised at law or in equity.”

188. In Christie no such “contractual or other entitlement” was identified. In particular, Meagher JA noted that it was not contended that the publication of the decision “would be tortious or involve any unreasonable restraint of trade because of any arrangement or understanding between [the Council] and its member show societies” citing Buckley (at [40]). Accordingly, the reliance on AFL v Carlton and Mitchell failed. Otherwise, the Court considered an argument that jurisdiction was enlivened based on Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 and Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242. That aspect of Christie is not relevant to this case.

Jurisdiction: Conclusion

189. It follows that I find that this Court does not have jurisdiction to review the Assessors’ Report or any proposed reliance by the Archbishop on that report. In light of that conclusion it is not possible to embark upon a determination of the plaintiff’s complaints about the absence of procedural fairness in the preparation of the Assessors’ Report, even on a contingent basis (or by “deferring” the issue of jurisdiction: see Obeid v R [2015] NSWCCA 309 at [9]). Such an inquiry would constitute a de facto form of interference in the affairs of a private body that the authorities warn about and would yield “findings” on matters that do not affect any legal rights or obligations.

Conclusion and Orders

190. It follows that the proceedings will be dismissed.

191. Given the existing relations between the parties I will not make any orders as to costs at this point. Instead, I will stand the proceedings over to 9.30am on 16 December 2016 for brief argument as to costs if necessary. I will order the parties to exchange submissions on that topic, not to exceed three pages, on or before 4:00pm on 13 December 2016. If the parties can reach an agreed position prior to 16 December 2016 then they can notify my Associate accordingly.

192. Accordingly, the Court orders that:

1. The proceedings be dismissed;

2. The matter be listed for argument on costs at 9.30am on Friday, 16 December 2016;

3. On or before 4pm on 13 December 2016, the parties are to file and serve submissions on costs that are not to exceed three pages;

4. There be liberty to apply.

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Endnotes

Amendments

05 December 2016 - Minor typographical errors corrected - [7], [12], [13], [25], [100],

Formatting amendments

Decision last updated: 06 December 2016