DEF v Trappett

[2015] NSWSC 1840

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

DEF v Trappett [2015] NSWSC 1840

Hearing dates:

14 August 2015

Date of orders:

07 December 2015

Decision date:

07 December 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The third defendant’s notice of motion filed 9 July 2015 is dismissed.

 

(2) The plaintiff is granted leave to file a second further amended statement of claim.

 

(3) The second further amended statement of claim is to be filed and served on or before 16 December 2015.

 

(4) Costs are reserved.

 (5) The matter is listed for directions at 9.00 am before the Registrar on 3 February 2016.

Catchwords:

CIVIL PROCEDURE – application to strike out pleadings – whether pleadings disclose a viable cause of action – justiciability of claims – decisions of voluntary religious organisation – whether Towards Healing protocols of the Catholic Church give rise to enforceable civil rights – justiciability of claims concerning canon law – justiciability of natural justice claim

Legislation Cited:

1983 Code of Canon Law
Federal Court Act 1976 (Cth)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Annetts v McCann [1990] HCA 57; (1990) 70 CLR 596
Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419
Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358
Carter v NSW Netball Association [2004] NSWSC 737
Clarke v State of New South Wales [2015] NSWSC 1054
Egan v Minister for Transport (Cth) (1976) 14 SASR 445
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Evans (of Robb Evans & Associates) v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82
Field v NSW Greyhound Breeders, Owners & Trainers Association Ltd (1972) 2 NSWLR 948
Fisher v Keane (1879) 11 Ch D 353
Gibson v Parkes District Hospital (1991) 26 NSWLR 9
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Macqueen v Frackelton [1909] HCA 28; (1909) 8 CLR 673
McGuirk v University of New South Wales [2009] NSWSC 1424
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705
Rondel v Worsley (1967) 1 QB 443; [1966] 3 All ER 657
Scandrett v Dowling (1992) 27 NSWLR 483
Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Sturt v the Right Reverend Dr Brian Farran Bishop of Newcastle [2012] NSWSC 400

Texts Cited:

Truth, Justice and Healing Council, Royal Commission Issues Paper No 2, “Towards Healing”, 30 September 2013

Category:

Procedural and other rulings

Parties:

DEF (Plaintiff)
Scott Trappett (First Defendant)
Dan-Phoung Nguyen (Second Defendant)
Mark Eustace (Third Defendant)
John Dunford QC (Fourth Defendant)
Most Reverend Archbishop Mark Coleridge (Fifth Defendant)

Representation:

Counsel:
M McAuley (Plaintiff)
M Higgins (Third Defendant)

  Solicitors:
McAuley Hawach Lawyers (Plaintiff)
Unsworth Legal (First, Second, Third & Fourth Defendants)
Mullins Lawyers/Carroll & O’Dea Lawyers (Fifth Defendant)

File Number(s):

2014/374692

Publication restriction:

Nil

Table of Contents

The plaintiff

Towards Healing – the protocols

Towards Healing – the process

Towards Healing – the review process

The assessment of the complaint against the plaintiff

The proposed second further amended statement of claim

The third defendant’s strike out motion

Summary judgment

Decisions of voluntary religious organisations

The pleaded Towards Healing claim

The canon law claims

The natural justice claim

The plaintiff’s motion

The form of the proposed second further amended statement of claim

Orders

Judgment

1. HER HONOUR: The main issue before this Court is whether claims concerning the Towards Healing protocols of the Catholic Church are justiciable. There are two notices of motion before this Court. By notice of motion filed 9 July 2015, the third defendant seeks an order that the further amended statement of claim be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). By further amended notice of motion filed 9 July 2015, the plaintiff seeks an order that leave be granted to him to file a proposed second further amended statement of claim (“P2FASC”).

2. The Towards Healing protocols are internal protocols of the Catholic Church in Australia which deal with complaints of abuse by personnel (officially entitled “Towards Healing, Principles and procedures in responding to complaints of abuse against personnel of the Catholic Church in Australia, January 2010”). The plaintiff had a complaint against him dealt with under the Towards Healing protocols. I have made an order that the plaintiff be referred to as DEF.

3. The first and second defendants are Scott Trappett and Dan-Phoung Nguyen, assessors appointed under the Towards Healing protocols (“the Assessors”). The third defendant is Mark Eustace, the Director of Professional Standards Queensland for the purposes of the Towards Healing protocols (“the Director of Professional Standards”). The fourth defendant is John Dunford QC, the Chair of the National Review Panel for the Towards Healing process (“the Chair of the National Review Panel”). The fifth defendant is the Most Reverend Archbishop Mark Coleridge, the Catholic Archbishop of Brisbane (“the Archbishop of Brisbane). At the hearing, DEF was represented by Mr Michael McAuley of counsel. The Director of Professional Standards was represented by Mr Mark Higgins of counsel. The Assessors and the Chair of the Review Panel have filed submitting appearances, but at the hearing Mr Higgins indicated that he also acted in their interests. For convenience, I shall refer to these defendants as “the defendants” as a group, or by their roles in the Catholic Church when referring to them individually.

4. DEF relied upon the affidavits of Stephen McAuley sworn 11 February 2015, 19 February 2015, 7 April 2015, 18 May 2015, 3 June 2015 and 12 August 2015.

5. The Catholic Archbishop of Brisbane neither consented to nor opposed the filing of the P2FASC. He was represented by Mr Daniel O’Brien of Carroll & O’Dea Lawyers.

The plaintiff

6. DEF is a Catholic priest incardinated in the Catholic Archdiocese of Brisbane. He is provided with accommodation by the Archdiocese of Brisbane. DEF was born in Vietnam and has limited English.

7. In 2014, a complaint was made against DEF by a complainant (“the Complainant”) who alleged that DEF abused his wife (“the Complainant’s wife”).

8. DEF denied the allegations. The veracity of the complaint was assessed pursuant to the Towards Healing Protocols.

Towards Healing – the protocols

9. The Towards Healing protocols have been promulgated by the Australian Catholic Bishops Conference and authorised and adopted by the Archdiocese of Brisbane. They set out the principles and procedures to be used by the Catholic Church in Australia to receive and respond to complaints of abuse against its personnel.

10. Abuse is defined under the Towards Healing protocols as “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” (TH Part 1).

11. Prior to 1996, complaints of abuse were dealt with under the system of canon law, the internal body of law governing the structure and discipline of the Catholic Church in Australia. The 1983 Code of Canon Law (“the Code of Canon Law”) was promulgated by Pope John Paul II. The provisions of Book IV of the Code of Canon Law, entitled “Sanctions in the Church”, include various procedural protections for an accused while complaints against them are dealt with. In 2001, Pope John Paul II issued an Apolistic letter promulgating certain substantive norms for dealing with complaints of abuse having the force of canon law.

12. The Towards Healing protocols were adopted by the Catholic Church of Australia in deliberate preference to relying solely on canon law processes formerly used to deal with complaints of abuse. The Catholic Church in Australia has stated that this was because canon law processes “are not victim-focused and are mainly concerned with dealing with accused persons” (see submission from the Truth, Justice and Healing Council, Royal Commission Issues Paper No 2, “Towards Healing”, 30 September 2013).

Towards Healing – the process

13. The Towards Healing process for complaints of abuse involves an assessment, if necessary, of the veracity of the complaints, followed by referral to the “Church Authority” to decide on an outcome (in this case, the Archbishop of Brisbane is the Church Authority).

14. If a complaint concerns an alleged crime, the Director of Professional Standards 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 (TH 37.1). 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 (TH 38.1), but no Church investigation shall be undertaken in such a manner as to interfere in any way with the proper processes of criminal law (TH 37.6).

15. Once a complaint is made, the person whose behaviour is complained about (called “the accused”) will be informed. If the accused denies the complaint, the matter can be investigated through an assessment. At any time, the Director of Professional Standards may recommend to the Church Authority that the accused be asked to stand aside from office in the Catholic Church pending the assessment (TH 38.10).

16. Two independent assessors are appointed by the Director of Professional Standards (TH 40.1). The assessors arrange interviews with the complainant and the accused, and any other persons who may aid the assessment process (TH 40.3). 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 shall 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 (TH 40.4).

17. After the assessment is completed, the assessors provide a written report to the Church Authority and the Director of Professional Standards (TH 40.9). 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 the time (TH 40.9). The assessors must provide reasons for their findings. If they are unable to reach determination of the truth of the matter with a sufficient degree of certainty, they may nonetheless make recommendations to the Church Authority concerning its response to the complainant; including the continuation of a person in a particular kind of ministry (TH 40.9.1). The assessors may also comment on the seriousness of the violation of the integrity of the pastoral role (TH 40.9.2).

18. The matter is then referred to the Church Authority. The Church Authority discusses the findings and recommendations of the assessment report with the Director of Professional Standards. If the assessors consider the complaint sustained, then the Church Authority must consider what action needs to be taken under Clauses 41 and 42 of the Towards Healing protocols (TH 40.10).

19. Clause 41 concerns outcomes relating to the victim. If the Church Authority is satisfied of the truth of the complaint through the assessment, responses to the victim for non-criminal complaints may include the provision of an apology or the provision of; or payment of counselling,

20. Clause 42 concerns outcomes relating to the accused. If the complaint is not sustained, the Church Authority shall take whatever steps are necessary to restore the good reputation of the accused (TH 42.2). If the assessment reaches the conclusion that there are concerns about the person’s suitability to be in a position of pastoral care, 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 (TH 42.3). 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 future ministry (TH 42.5). The decisions of the Church Authority as to future ministry are not be inconsistent with canon law (TH 42.5).

Towards Healing – the review process

21. A review of the Towards Healing process is available to an accused, but only if they co-operated with the assessment process (TH 44.1.3). A review is an independent evaluation of the process and findings of the assessors (TH 44.2). It is not a review of the outcomes defined in Clauses 41 and 42 (TH 44.2). An accused may seek a review within three months of the time when the Director of Professional Standards furnished the assessment report to the Church Authority (TH 44.5). Reviews are conducted by a National Review Panel constituted of three former Supreme Court judges. The National Review Panel may substitute its own findings for those of the assessors and direct that a further assessment be undertaken.

22. Various procedural protections are included in the Towards Healing that cover the process before, during and after an assessment. These include the right of the accused to be given enough detail about the complaint, the person who was allegedly abused, to be able to offer a response (TH 38.5) and the right to obtain independent legal advice (TH 38.6). There is also a provision that provides for the presumption of innocence, at clause 26. It reads:

“26.   All persons are presumed innocent unless and until guilt is either admitted or determined in accordance with the requirements of the law governing their position. Proper consideration should be given to the importance of confidentiality in the handling of the complaint, particularly prior to the conclusion of an assessment. If Church personnel accused of abuse are asked to step aside from the office they hold while the matter is pending, it is to be clearly understood that they are on leave and that no admissions or guilt are implied by this fact. Every effort should be made to conclude inquiries as quickly as possible in relation to a person who has been asked to step aside from a position. Unless and until guilt has been admitted or proved, those accused should not be referred to as offenders or in any way treated as offenders.”

23. After an assessment report is completed, there is a right to be provided with reasons by the assessors for their findings (TH 40.9.1).

The assessment of the complaint against the plaintiff

24. On 5 March 2014, DEF received a letter from the Archbishop of Brisbane informing him of the allegations of abuse against him by the Complainant. DEF was informed that the Complainant had alleged that DEF “sexually abused and exploited” his wife, a “vulnerable person”. The letter stated that the allegations against him were to be dealt with under the Towards Healing protocols (Aff. McAuley 11/2/15, p 104).

25. On 19 March 2014 DEF responded by letter to the Archbishop of Brisbane, denying all of the allegations and any misconduct. Relevantly, DEF stated that:

“I wish to categorically deny every one of the charges made against me. Everyone of them is false, and while I would infinitely prefer not to have to deal with the such matters, I am determined to do everything possible or necessary to refute these allegations.

…

I believe I should be treated as innocent until I am proved to be guilty, and that, I am convinced, is impossible.” (Aff. McAuley 11/2/15, p 111).

26. On 26 March 2014, Rev John Doherty, a canonical procurator, wrote to the Archbishop of Brisbane on behalf of DEF requesting that DEF’s claim be dealt with via canon law processes rather than under the Towards Healing protocols. Rev Doherty wrote that:

“I respectively draw Your Grace’s attention to the substantive canonical points in my letter of 22 march 2013 as they, naturally, still apply.

As to the substance of Your Grace’s recent letter, [DEF] denies all wrongdoing and is formally asking for a canonical process, which is his right.”(Aff. McAuley 11/2/15, p 112).

27. On 27 March 2014, DEF’s solicitors wrote to the Director of Professional Standards requesting further documentation of the allegations on the basis they are needed in order to respond to them properly and as a matter of procedural fairness. There was further correspondence concerning these documents. The Director of Professional Standards replied that the provisions of clause 38.5 of the Towards Healing protocols regarding detail about the complaint had been satisfied in the initial letter to DEF (Aff. McAuley 11/2/15, p 113).

28. On 24 April 2014, the Archbishop of Brisbane wrote to DEF to advise him that the Assessors had been appointed to assess the allegations against him. DEF was directed to stand aside from all priestly ministry until further notice and asked to move as soon as reasonably possible to reside in a unit owned by the Archdiocese of Brisbane (Aff. McAuley 11/2/15, p 119).

29. On 2 May 2014, DEF’s solicitors wrote to the Director of Professional Standards advising that they required the documents upon which the allegations were based, in order to reasonably respond, particularly since the allegations were of a historic nature (Aff. McAuley 11/2/15, p 133). There was no reply. On 28 May 2014, a further letter requesting documents was sent by DEF (Aff. McAuley 11/2/15, p 135). On 29 May 2014, the Director of Professional Standards replied and stated that making a request of the Complainant to produce those documents was a matter of due diligence, and one for the Assessors (Aff. McAuley 11/2/15, p 137).

30. On 5 June 2014, the solicitors for DEF again wrote to the Director of Professional Standards stating that he was not satisfied that what was proposed accorded DEF procedural fairness, and that:

“At this stage there has been, in our opinion, a complete failure of procedural fairness and any findings by the proposed assessors will inevitably be flawed.” (Aff. McAuley 11/2/15, p 139).

31. The complaint proceeded to assessment. In the course of the assessment, an investigation of the complaint took place including tape recorded interviews with the Complainant and the Complainant’s wife, daughter and sister-in-law.

32. On 3 July 2014, the Assessors wrote to DEF offering him the opportunity of an interview and enclosing some further documents relating to the complaint. These included statements of the Complainant and the Complainant’s wife. The Complainant’s wife’s statement included further details of the alleged sexual abuse including detailed descriptions of alleged forced intercourse. There was also a further statement of a witness describing an incident of a sexual nature with DEF and a telephone call in which DEF asked her to tell the Complainant’s wife to “deny everything” (Aff. McAuley 11/2/15, pp 141-167).

33. On 9 July 2014, DEF’s solicitors replied that due to a psychiatric condition DEF was in hospital, and requested the Assessors to take no further action until they could obtain instructions (Aff. McAuley 11/2/15, p 168).

34. On 15 July 2015, the Assessors replied stating that the Director of Professional Standards had instructed that the assessment was to continue “subject to you providing a medical/clinical report confirming [DEF’s] psychiatric illness for consideration” and that written submissions would be accepted up until 31 July 2014 (Aff. McAuley 11/2/15, p 169).

35. On 18 July 2014, DEF’s solicitors wrote to the Assessors that “our client suffers from psychotic depression and may be incapable of giving evidence… We confirm that our client is currently in hospital under the care of Dr Martin, his treating psychiatrist. We are in the process of obtaining further information”; and concluded that “It is entirely unfair for you to ‘continue the assessment’ in the circumstances” and that such an assessment would be flawed for lack of procedural fairness. DEF’s solicitors also requested further information about the complaints; indicated that the material included in the letter dated 3 July 2014 mostly included allegations that fell outside the definition of “Abuse” as defined by the Towards Healing protocols and was rather, a consensual relationship; and drew the Assessors’ attention to DEF’s medical reports including a letter from Dr Michael Martin, DEF’s treating psychiatrist dated 9 April 2014 (Aff. McAuley 11/2/15, p 170).

31. On 21 July 2014, the Assessors responded to DEF’s solicitors stating that since there was nothing confirming DEF had a serious psychiatric condition, the matter was to proceed. They wrote:

“I note the handwritten letter of Dr Martin dated 9 April 2014 merely states he cannot attend a meeting on 9 and 10 April 2014 due to a ‘medical condition’. Dr Canaris found no evidence of psychosis and elicited no evidence of an organic brain syndrome. Dr Geradine Robinson describes him as outwardly compliant yet behaviourally deceptive and manipulative. He is unlikely to benefit from participation in a therapeutic program.

While you continue to state he has a serious psychiatric condition, to date I have not received any medical clinical report confirming this.

My instructions are to continue the assessment of this matter subject to you providing a medical/clinical report confirming [DEF’s] psychiatric illness for consideration. I note that despite several requests from the Director of Professional Standards you have not as yet provided such a report.

As provided in my letter of 3 July 2014 I will accept written submissions received by 31 July 2014…

…

If, by 31 July 2014, I do not receive a medical/clinical report confirming [DEF’s] psychiatric illness for consideration, or advice regarding [DEF’s] election to take part in an interview, or any further submissions my colleague and I will finalise the assessment…” (Aff. McAuley 11/2/15, p 173).

37. On 23 July 2014, Dr Martin wrote to the Archbishop of Brisbane advising him that DEF was receiving treatment for depression and anxiety; and that he had made plans to travel to Vietnam from 4 August 2014 to 29 August 2014. Dr Martin wrote that it was his opinion that DEF would benefit from undertaking his annual holiday and that doing so would benefit his mental health. He also said that on return to Australia, DEF would be available to participate in the Towards Healing process (Aff. McAuley 11/2/15, p 175).

38. On 30 July 2014, DEF’s solicitors wrote to the Assessors enclosing a report of Dr Martin dated 25 June 2014. Dr Martin stated in his report that participation in the assessment was likely to increase DEF’s level of depression but that he would be able to cope, with support. Relevantly, he said that:

“The stress of the enquiry is likely to increase his depression and also his persecutory ideation. He may become more severely depressed and require hospitalisation. His persecutory ideation tends to increase when he feels stressed and also when there is any reminder or involvement with the person in the Vietnamese community who assaulted him and made the complaints about him…

…

However I believe he will cope with the assessment process with support”. (Aff. McAuley 11/2/15, pp 178-184).

39. On 31 July 2014, the Assessor’s wrote to DEF’s solicitors stating that “It is most pleasing to read that Dr Martin believes [DEF] will cope with the assessment process with support…” and that “If, by 31 July 2014, I do not receive advice regarding [DEF’s] election to take part in an interview… I will finalise the assessment…” (Aff. McAuley 11/2/15, p 186).

40. On 1 August 2014, DEF’s solicitors wrote to the Assessors stating that “We do not consider that your summary of Dr Martin’s views is a fair account of those views” and notifying them that they were in the course of obtaining updated information about DEF’s psychiatric condition from Dr Martin (Aff. McAuley 11/2/15, p 187).

41. On 7 August 2014, DEF’s solicitors emailed the Assessors attaching a copy of a further report of Dr Martin dated 7 August 2014. In that report, Dr Martin was of the opinion that DEF was not capable of giving evidence. He relevantly stated that:

“Since 25th June 2014 [DEF] has suffered a worsening of depression and anxiety. As well as symptoms of depression and anxiety he was also hearing a threatening persecutory voice inside his head. Subsequent to this he was readmitted to Belmont Private Hospital on 9th July. He has remained in hospital since this time and is currently still an inpatient. This has necessitated increase in his antidepressant medication which was increased on 10th July. Subsequently it has been decreased slightly due to side effects. In hospital [DEF’s] level of depression and anxiety has reduced but he still experiences both these conditions every day. With treatment the auditory hallucinations have ceased.

There are serious issues in relation to [DEF] giving evidence before an enquiry. I am uncertain that he knows fully the consequences of any enquiry or the full significance or meaning of terms and questions. I believe that giving evidence before an enquiry will be detrimental to his mental state and that before and after giving evidence there is a high probability of him suffering deterioration in his depression and anxiety necessitating more intense

treatment. I do not believe [DEF] is capable of giving evidence.” (Aff. McAuley 11/2/15, p 191).

42. On 14 August 2014, DEF’s solicitors wrote to the Assessments enquiring about a response to the further information from Dr Martin (Aff. McAuley 11/2/15, p 192). They wrote that:

“1.   We refer to our correspondence dated 1 August 2014 and 7 August 2014 and note that we have received no response.

2.   Could you please provide us with your response.”

43. On 14 August 2014, the assessment was completed. In the assessment report, the Assessors addressed DEF’s psychiatric condition. They also addressed whether DEF had been denied natural justice during the investigation of the matter. The Assessors came to several conclusions “substantiated to the required standard” (Aff. McAuley 11/2/15, p 194). These included that DEF had embarked on “grooming” activities to initiate a sexual relationship with the Complainant’s wife, a vulnerable person, utilizing his position in the Church to do so; that DEF had sexually assaulted the Complainant’s wife without her consent; that DEF attempted to frustrate the Assessors task by contacting the Complainant’s sister-in-law and attempting to offer her money in exchange for denying the allegations made against him; and that in accordance with clause 40.9.2 of the Towards Healing protocols the actions of DEF were a very serious violation of the integrity of his pastoral role.

44. The Assessors recommended that consideration be given to further restricting DEF’s unsupervised contact with church attendees, subject to urgent consideration of remedial action being considered against him.

45. Also on 14 August 2014, the Director of Professional Standards wrote to DEF advising that the assessment was completed. DEF was informed of the conclusions of the Assessors but was advised that the full assessment report could not be provided as it could be psychologically damaging to one or more parties, release identities of informants and contained unrelated sensitive information. The Director of Professional Standards informed DEF that he could seek a review within 3 months (Aff. McAuley 11/2/15, p 194).

46. On 21 August 2014, DEF’s solicitors responded to the Director of Professional Standards and wrote that without an unredacted copy of the assessment report, they could not possibly provide proper advice to DEF about a proposed review. DEF’s solicitor wrote that “the concept of secret trials is inconsistent with fundamental human rights” and notions of procedural fairness. He wrote that no transcript of any evidence of any witness, including the complainant’s wife, had been provided; that provided documents were unsigned and unsworn; and that the majority of the Assessors' reasons were not provided. In summary DEF’s position at [19] of that letter was that: “On the face of it, both the Assessors and yourself have been guilty of very serious breaches of procedural fairness – as well as having failed to comply with the provisions of Towards Healing” (Aff. McAuley 11/2/15, p 196).

47. On 22 August 2014, the Director of Professional Standards replied that he had referred DEF’s request for a full copy of the assessment report to the Chair of the National Review Panel (Aff. McAuley 11/2/15, p 201).

48. The review process has yet to be undertaken. But, DEF does not wish to have the assessment reviewed by the National Review Panel and rather, he seeks relief in this Court.

49. DEF says that his reputation as a Catholic priest has been “irreparably damaged” by reason of the assessment report (P2FASC [267]) and he is at risk of dismissal from the clerical state.

The proposed second further amended statement of claim

50. On 11 June 2015, DEF filed a statement of claim. On 25 June 2015, DEF filed a further amended statement of claim. DEF now seeks to rely upon a proposed second further amended statement of claim. For the purposes of the strike out application, I will consider DEF’s P2FASC because it is his case taken at its highest.

51. DEF’s claims concern the way in which the complaint against him has been dealt with. At paragraphs [266] to [268] the P2FASC pleads under the heading “Generally”:

“266.   The Assessment Report makes the abovementioned findings of guilt in relation to the plaintiff:

(a)   in contravention of canon law,

(b)   in contravention of the requirements of Towards Healing; and

(c)   in breach of the plaintiff’s right to natural justice.

267.   The plaintiff’s reputation has been irreparably damaged by the Assessment Report.”

52. DEF’s claims can be summarised as follows. Firstly, he alleges that clauses concerning procedural fairness under the Towards Healing protocols have been breached by the defendants (“the Towards Healing claim”); secondly, that he was owed certain civil rights by the defendants during the assessment of the complaint against him under the Code of Canon Law, which have been breached; thirdly, that he has a right to have his claim assessed under canon law processes, and a right not to have his livelihood and ministry as a priest removed or attenuated other than in accordance with the Code of Canon Law (“the canon law claims”); and finally, that he was denied natural justice (“the natural justice claim”).

53. Based on those claims, DEF seeks the following relief:

• An order that his identity not be disclosed (prayer [1]);

• Declarations that he was denied natural justice in the circumstances of the complaints against him under the Towards Healing assessment (prayers [2]-[3]);

• Orders in the nature of certiorari, quashing the Towards Healing assessment report, the decision of the Chair of the National Review Panel to refuse to provide him with material upon which the assessment was based, and the decision of the Chair of the National Review Panel to refuse to provide him with the Towards Healing Principles/Guidelines (prayers [4]-[6]);

• Orders that he be provided with certain materials (namely, the materials upon which the assessment report was based and the Towards Healing Principles/Guidelines (prayers [7]-[8]); and

• Injunctive relief preventing the Director of Professional Standards, the Chair of the National Review Panel and the Archbishop of Brisbane from taking any further steps in reliance on the assessment report, from pursuing an assessment pursuant to the Towards Healing protocols and from publishing the assessment report; and preventing the Chair of the National Review Panel from taking any steps in relation to the review application (prayer [9]).

54. These claims seek to enliven this Courts supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). At the hearing, counsel for DEF clarified that judicial review is sought and after the hearing, with leave counsel for DEF filed additional submissions. DEF wishes to insert in the relief section of the P2FASC at [9D]:

“Such declarations, orders and injunctions are sought in accordance with s 69 of the Supreme Court Act 1970 (NSW).”

55. Further, in the additional submissions DEF requested that several (but not all) provisions concerning canon law be deleted from the P2FASC, and that several references to canon law be deleted. DEF stated that:

“The purpose of the above amendments is to make it clear that these proceedings are for the purpose of protecting the plaintiff’s rights under Australian law – not for the purpose of interpreting, applying or enforcing canon law.”

56. Considering these further amendments and comments, it now appears that DEF wishes to abandon the claim that the process was “in contravention of canon law”. But, since this is not clear, I have considered the viability of the canon law claims.

The third defendant’s strike out motion

57. By notice of motion dated 9 July 2015 the Director of Professional Standards seeks to have the entire P2FASC struck out.

58. So far as relief is concerned, counsel for the defendants submitted that orders in the nature of certiorari are not available as a form of relief against the decisions of private or domestic tribunals. The defendants referred to Sturt v the Right Reverend Dr Brian Farran Bishop of Newcastle [2012] NSWSC 400 per Sackar J at [419] and Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419 per Einstein J at [11] in support of this proposition. The defendants also submitted that there is no legal basis for DEF to claim orders that particular documents be provided as relief.

59. At the hearing and in his submissions in reply, counsel for DEF conceded that the claims for certiorari are unavailable. No legal basis was given in support of the claim for the production of documents. Hence, I disallow the claims for certiorari and for production of documents.

Summary judgment

60. UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.

61. UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).

62. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705 the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application:

1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (French CJ and Gummow J (Hayne, Crennan, Kiefel, Bell and Heydon JJ agreeing) at [23]).

2. The critical question can be expressed as whether there is more than a “fanciful” prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (Hayne, Crennan, Kiefel and Bell JJ in separate reasons at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.

3. Powers to summarily terminate proceedings must be exercised with exceptional caution (Hayne, Crennan, Kiefel and Bell JJ at [55]; see also French CJ and Gummow J at [24]).

63. The defendants say that all of the material included in the P2FASC concerning DEF’s life before he came to Australia is embarrassing on the basis that it contains “confusing or irrelevant” allegations and has no “sufficiently clear” material connection to any of the claims as presently pleaded, referring to Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 per Tamberlin J at [18]; McGuirk v University of New South Wales [2009] NSWSC 1424 per Johnson J at [30]-[33]; and Clarke v State of New South Wales [2015] NSWSC 1054 per Garling J at [39]-[41].

64. But, a statement of claim should not be struck out, notwithstanding the plaintiff’s failure to comply with the rules of the Court as to pleadings, if it is possible to salvage something out of the plaintiff’s “messy verbiage” which will support a cause of action: see Rondel v Worsley (1967) 1 QB 443; [1966] 3 All ER 657, as cited in Egan v Minister for Transport (Cth) (1976) 14 SASR 445 per Zelling J (Bray CJ and Wells JJ agreeing) at 451.

65. In Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, Master Allen said (at 373-374) (cited with approval by Badgery-Parker J in Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35-36):

“… It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling the development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development.”

66. As I understand it, this is the first occasion where the Towards Healing protocols have been subject to challenge in this Court.

67. The issue here is whether or not the P2FASC or any part of it discloses any reasonable cause of action. Since the claims involve the internal rules of a voluntary religious organisation, this depends mainly on a determination about whether or not any of the claims are justiciable in a Court.

68. I will firstly, summarise the law concerning the intervention of civil courts in rulings by voluntary religious organisations; secondly, deal with the Towards Healing claim; thirdly, consider the canon law claims and finally, consider the natural justice or procedural fairness claim.

Decisions of voluntary religious organisations

69. The traditional view is that this Court does not have jurisdiction to interfere with decisions made under internal rules of voluntary organisations. There is long standing authority behind this proposition. In Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, Rich, Dixon, Evatt and McTiernan JJ (Starke J agreeing) held at 370-371 that the internal rules of voluntary associations are, as a general rule, “consensual contracts” which are not enforceable by ordinary courts since:

“They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting …religious… or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.”

70. In other words, the jurisdiction of this Court to supervise the rules of voluntary organisations is limited to where internal rules of such organisations can be shown to create legally binding rights and obligations. Such rights include property rights or contractual rights. So far as voluntary religious organisations are concerned however, the courts will not interfere in the interpretation and operation of matters entirely of a spiritual nature: see Scandrett v Dowling (1992) 27 NSWLR 483.

71. In Scandrett, the Court of Appeal was asked to consider whether provisions of the Constitution of the Anglican Church that prevented women being ordained as priests were binding on domestic dioceses. Scandrett decided that the provisions did not create legally binding rights and obligations. Priestley JA (with whom Hope AJA agreed) held that the binding effect of the Constitution was limited to purposes connected with property and said at 513:

“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.”

72. So far as decisions of religious tribunals are concerned, Priestley JA continued (at 522):

“There is no need for a consensual compact concerning matters of Church discipline and organisation to be binding as a civil contract. In cases not involving Church property, the sentences of the Church tribunals will have effect; eventually the person sentenced will either submit to the sentence, or be excused from it, or cease to be a member of the Church. Where Church property is involved, the civil law of trusts and property will apply, and bring about the implementation, or otherwise, of the sentence. For this law to operate, no reliance on civil contract law is necessary.”

73. Hence, not all provisions of a consensual compact between members of a religious organisation will give rise to binding rights.

74. Prescribed rights under internal legislation during disciplinary proceedings have been found to be legally binding and enforceable by the ordinary courts. In Macqueen v Frackelton [1909] HCA 28; (1909) 8 CLR 673, a minister of the Presbyterian Church of Queensland sought to argue that the preparation of a report against him had been prepared contrary to legally binding clauses protecting the right to a fair trial within the rules of the Constitution of the Church; and that consequently there had been a breach of contract. Griffith CJ (O’Connor and Isaacs JJ agreeing) held that those clauses gave rise to contractually binding rights within the consensual compact existing between members of the Presbyterian Church, and stated at 690-691 that:

“The powers of a court of law to interpret and give effect to such a compact when any civil right depends upon its terms are too well established to need any citation of authority to support them. The contrary contention, translated into plain English, is that a minister of the Presbyterian Church by adhering to the Constitution of the Church in effect enters into a contract not substantially distinguishable from the submission made by members of another well-known ecclesiastical organisation, every member of which is required to take a vow that he will in his relations to his religious superiors be perinde ac cadaver. In other words, the minister surrenders all his future prospects in life into the hands of an infallible General Assembly. It is impossible, in my judgment, to hold that the Constitution, with its elaborate provisions for the protection of accused persons and for securing them a fair trial set out in the Rules of Discipline, can be summed up in a compact by which the minister holds his office and emoluments at the will of the General Assembly.”

75. But, there is no automatic right to procedural fairness within a religious tribunal. At 700-702 in Macqueen, O’Connor J (agreeing with Griffith CJ but expressing additional reasons) emphasised that this is because a person may “submit themselves absolutely to the will and pleasure of the association which they have voluntary created” and deliberately surrender such rights:

“A voluntary association might certainly bind its members by a contract stipulating that the interpretation of the terms and conditions of association should be exclusively in the hands of a judicial body empowered to decide without question the limits of its own jurisdiction. It might further provide that the penalty of questioning the decisions of that tribunal should be expulsion from the association or a temporary loss of its benefits. Men may thus if they think fit submit themselves absolutely to the will and pleasure of the association which they have voluntary created. If they do so they have no right to complain of any exercise of power so long as it is not malicious.

…

…the law gave him a right to raise the question of the true interpretation of the contract and to raise it in that way.”

76. More recently in Sturt, Sackar J held that clauses concerning procedural fairness contained in internal disciplinary legislation of the Anglican Church were contractually binding.

77. In Sturt, an Anglican priest of the Diocese of Newcastle alleged that he was subjected to illegitimate, unfair, harsh and oppressive procedures by virtue of disciplinary proceedings before a professional standards board. The procedure for disciplinary proceedings in the Diocese of Newcastle was provided by a document entitled the “PS Ordinance”. At [41]-[146] Sackar J analysed whether or not any civil rights existed in that document which could be enforced in the Supreme Court, concluding at [142]-[146] that:

“[142]   There is little doubt in my mind that the PS Ordinance is drafted in language that manifests an intention to affect legal rights and obligations. Given the nature of the conduct which is sought to be examined and what is potentially at stake it seems to me that it cannot be gainsaid that that is the intention of the PS Ordinance. It has been put by the Primate, and I agree, that the plaintiffs each have an accrued right to hold and to hold themselves out as entitled to hold, Holy Orders in the Anglican Church of Australia which right is clearly at risk as a result of steps undertaken or purportedly taken under the PS Ordinance. There is also equally little doubt that a priest enjoys certain rights, privileges or advantages attached to the office (so described). These would include the actuality or prospect of receiving emoluments of the office of a priest. One example which was given was to solemnize a marriage under and for the purposes of the Marriage Act 1961 (Cth). Of course in doing so the priest is entitled to make a charge for the delivery of services. There is also the prospect envisaged by s 77(d) that if deposed from Holy Orders the person may not be able to hold an office which would otherwise be held by a lay person without the prior consent of the bishop. Examples of this would be a church warden or a member of a parish council.

[143]   Treating the PS Ordinance is this way is, it seems to me, entirely consistent with the decisions of Macqueen v Frackelton, Baker v Gough and Raguz v Sullivan.

[144]   On matters of discipline and if the PS Ordinance is invoked in the Diocese of Newcastle, I consider its language should properly be construed as giving those threatened or who’s careers are placed in jeopardy contractual rights to ensure the integrity of the process. Those rights, as here, can be enforced against the members relevantly of the PSC or PSB and if need be the bishop (the first defendant).

[145]   The process of investigation of allegations and in turn the public ventilation of such allegations are as it seems to me to be contractually governed by the promised procedure with its promised safeguards.

[146]   This contractual regime would in and of itself permit either plaintiff in my opinion to complain about a failure on the part of the church as it were (but relevantly members of the PSC and/or PSB) to observe the appropriate and/or promised procedures and if not to seek relief in the courts. In my view the plaintiff’s claims are justiciable.” (My emphasis added).

78. In summary, Sackar J in Sturt held it could be inferred from the language of the PS Ordinance, and considering the serious nature of the conduct being investigated and what was potentially at stake, that the provisions in that document concerning procedures for a fair hearing were legally binding and enforceable rights. Hence, the Court was permitted to determine whether those contractual rights had been breached.

The pleaded Towards Healing claim

79. In this claim, DEF alleges that he was denied certain rights to procedural fairness provided set out in the Towards Healing protocols. As mentioned earlier in this judgment, several clauses of the Towards Healing protocols contain procedural protections such as that 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 (TH [38.5]); and that the accused is entitled to information about his or her rights and about the process for dealing with the complaint. DEF says that these clauses, and others, were breached before, during and after his assessment under the Towards Healing protocols.

80. In the P2FASC, DEF pleads that, inter alia, the Assessors and the Director of Professional Standards acted in contravention of the Towards Healing protocols by failing to give proper notice of the allegations against him (TH 37, 38, 39, 40.3 and 40.11); failing to provide him opportunity to make submissions (TH 40.4, 40.11, 44 and 51) and failing to ensure the process was transparent (TH 40.11). He also alleges that the Chair of the National Review Panel denied him access to adverse material upon which the assessment was made (TH 40.9.1, 40.9.3, 44.1.2, 44.2, 44.6, 44.6.2, 44.8, 44.9 and 44.10).

81. DEF’s position was that as provisions concerning procedural fairness exists within the Towards Healing protocols; this claim is justiciable in this Court.

82. Counsel for the defendants conceded that due to Sackar J’s findings in Sturt the basic allegation concerning the defendants’ actions under the Towards Healing protocols is arguably justiciable. But, his position was that these circumstances can be distinguished from Sturt on the basis that the Towards Healing process is an investigative process not a disciplinary one. Counsel for the defendants also submitted that in any event, since the Towards Healing protocols provide for an internal merits review process, DEF should have gone through that process before coming to this Court. The defendants’ further submitted that since the P2FASC draws no clear distinction between the arguments concerning Towards Healing with those concerning canon law, the entire P2FASC should be struck out, including the claim concerning Towards Healing.

83. It is my view that the language used in the Towards Healing protocols arguably “manifests an intention to affect legal rights and obligations”. The Church member under investigation is termed “the accused”. Many procedural safeguards are included throughout the protocols, including the presumption of innocence; the importance of confidentiality; the need to conclude inquiries as quickly as possible when an accused has been asked to step aside from a Church position; the need to inform the accused of the nature of the complaint and enough detail about it, and the person who was allegedly abuse, to offer a response; the entitlement of the accused to information about his or her rights; and the need to advise the accused that he or she has the right to obtain independent legal advice; that the assessors must be independent of the Church Authority, the complainant and the accused; that the accused’s version of events must be put to the complainant; that the person said to have been victimized should be interviewed unless other relevant information is available; that the accused is permitted to have a support person or legal adviser present during any interview and that the assessors should interview any persons who could be of assistance.

84. DEF has been directed to stand aside from all priestly ministries until further notice. His career has been placed in jeopardy. He has an accrued right, as in Sturt (but in the context of the Catholic Church) to hold and to hold himself out as entitled to hold, Holy Orders. Also, DEF enjoys certain rights, privileges or advantages attached to his office (so described). These include a stipend paid at the fortnightly rate of $675, a fully maintained motor vehicle, a fortnightly allowance of $835 for household expenses and private health insurance all administered by the Archdiocese of Brisbane (Aff. McAuley 11/2/15, p 69).

85. Like the PS Ordinance in Sturt, I consider the language of the Towards Healing protocols should properly be construed as giving those threatened or whose careers are placed in jeopardy contractual rights to ensure the integrity of the process: at [144]. The process of investigation of allegations under the Towards Healing protocols, and in turn the public ventilation of such allegations, are arguably “contractually governed by the promised procedure with its promised safeguards”: Sturt at [145].

86. So far as DEF’s entitlement to a review is concerned, this is a discretionary factor in deciding whether or not this Court would intervene. While I accept that courts should be reluctant to intervene in the interpretation of the rules of voluntary religious organisations; it is arguable that certain contractual rights to procedural fairness exist within the Towards Healing protocols; and they have been breached by the defendants. It is my view that this claim is arguable and should be permitted to go to trial.

The canon law claims

87. DEF claims that he was owed certain civil rights under the Code of Canon Law by the defendants during the assessment of the complaint against him; which were breached. DEF claims that this is because the Code of Canon Law is superior law to the Towards Healing protocols, as the Towards Healing protocols have not received “confirmation by the Apolistic See” (P2FASC at [127]), “lacks authority under canon law” (P2FASC [129]) and in a multitude of respects does not conform, and is “inconsistent with the Code of Canon Law” (P2FASC [110]-[170]).

88. In the P2FASC, DEF pleads that the Code of Canon Law is the universal law of the Church, issued by the authority of the Pope, and is binding on everyone in the Church including bishops. While diocesan bishops can dispense with certain parts of the Code of Canon Law, they cannot dispense penal or procedural laws (canon 87); and those laws contain rights to which he is entitled.

89. DEF pleads that when a bishop decrees that an accusation against a priest is to be investigated, that investigation is by that fact a canonical process and that in this case was an administrative penal process (canon 178).

90. In an administrative penal process, usually the case is that a diocesan bishop makes a decision with the help of two assessors (canon 1720). Under that process, certain procedural norms under the Code of Canon Law apply (canons 1717-1731). These procedural protections include the right of an accused to be notified of the allegation and the proofs and given an opportunity for defence (canon 1720), the right to representation (1481, 1723), access to relevant evidence (canon 1598), that names of witnesses be disclosed (canon 1554) and that parties can make submissions in respect of all relevant evidence (canons 1598, 1599, 1600-1604). The standard of proof is “moral certitude”, which is higher than the balance of probabilities and similar to beyond reasonable doubt (canon 1526, 1608).

91. DEF claims that the procedural protections set out in the Code of Canon Law apply to the Towards Healing process, as an administrative penal process, in addition to the procedural protections included in the Towards Healing protocols; and that several of these procedural protections were breached. DEF alleges that the defendants failed to afford him procedural fairness under several specific canons: inter alia, by failing to give proper notice of the allegations against him (canons 1720-1728); failing to provide him opportunity to make submissions (canons 1720-1728, especially 1720.1) failing to ensure the process was transparent (TH 40.11), denying him access to relevant material (canons 1720-1728, especially 1720.1) especially in regard to the preparation of the assessment report, making any review application difficult, if not impossible (canons 1720-1728, especially 1720.1).

92. DEF also pleads that he was denied the right to be dealt with according to the Code of Canon law rather than under the Towards Healing protocols (P2FASC [169]-[170]); and that he has a right not to have his livelihood, ministry, rights and privileges as a priest, as accorded by canon law, removed or attenuated other than in accordance with canon law (P2FASC [263]-[264]).

93. The defendants submitted that since this claim is purely related to the interpretation of spiritual law, it is not justiciable in this Court and should be struck out. According to counsel for the defendants, while it may be accepted that this Court has jurisdiction over some aspects of the internal rules of voluntary organisations, that jurisdiction does not extend to a matter which asks the Court to make a forensic examination of the interpretation and operation of spiritual laws; and that no property or contractual rights exist here which permit such intervention.

94. Further, counsel for the defendants submitted that DEF’s claim requires the Court to not only interpret and apply canon law, but to make determinations regarding the conformity and validity of internal local rules and procedures of the Catholic Church in Australia to deal with allegations of sexual misconduct within the domestic jurisdiction, with canon law, the ecclesiastical system of law issuing from the Holy See.

95. The defendants’ further and alternative argument is that in any event, the Code of Canon Law, as a law issuing from the Holy See, should be regarded as the public law of a foreign country. As such, according to counsel for the defendants, an order for an injunction or declaration to enforce its terms would fall foul of “the rule of private international law that an Australian court will not entertain an action for the enforcement of a penal, revenue or other public law of a foreign state”: Evans (of Robb Evans & Associates) v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 at [1] per Spigelman CJ (Handley and Santow JJA agreeing).

96. DEF’s response to the defendant’s private international law argument was that such an issue must be determined at trial as it involves calling expert witnesses in Canon Law.

97. Counsel for DEF also drew this Court’s attention to the decision in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 where Gaudron, McHugh, Hayne and Callinan JJ in a joint judgment (Kirby J agreeing) held that although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognized that there are aspects of that relationship which may give rise to legally enforceable rights and duties: at [38].

98. In Ermogenous, at [73]-[76] Kirby J (providing additional reasons) said:

“[73]   …Courts will seek to avoid entanglements in what are substantially issues of religious doctrine where there is no applicable legal norm or specific judicial competence. But courts will reject    the notion that religious organisations, as such, are somehow above secular law and exempt from its rules. Like all others in a secular society, religious and associated bodies in Australia may be held accountable for the contracts which they voluntarily enter... Proceedings brought by the parties to such contracts who seek to enforce them do not, as such, lack justiciability. Nor can a blanket answer be given that, in such arrangements, ministers of religion and organisations providing for their sustenance do not intend to enter legally enforceable arrangements simply because of the ‘spiritual calling’ of the minister of religion concerned.

Spiritual functions do not negate legal relationships

[74]   There is therefore no presumption that contracts between religious or associated bodies and ministers of religion, of their nature, are not intended to be legally enforceable. At least where the contracts concern proprietary and economic entitlements, of the kind which in this case Archbishop Ermogenous sought to enforce (and certainly where they are not intertwined with questions of religious doctrine that a court would not feel competent to resolve according to legal norms) there is no inhibition either of a legal or discretionary character that would prevent enforcement of such claims when they are otherwise proved to give rise to legal rights and duties.

[75]   At least some of the more recent decisions of Commonwealth countries outside the United Kingdom reflect this application of ‘a contemporary lens’ to the arrangements of a minister of religion with a putative employer. The long trend of authority from colonial times in Australia and the more recent trend of case law in the United States, New Zealand and Canada supports the approach of the Industrial Magistrate in this case. That trend does not, in my judgment, sustain a broad proposition, still less a general legal rule, that ministers of religion (including archbishops) and those who make arrangements for their necessities cannot intend to enter contractual arrangements because the ministry involved is ‘spiritual’ in character and for that reason is fundamentally incompatible with legal enforceability.

[76]   Even people of a spiritual vocation normally need stable arrangements for the necessities of life. In a case where such an agreement is proved with an identifiable party and it is breached, the victim of the breach is not beyond the law's protection. Australia is a secular polity. There is no general rule that the ‘spiritual character of the relationship’ concerned ‘militate[s] against a finding that the necessary intention [to enter] into contractual relations has been formed’. In concluding otherwise, the Supreme Court erred in law. Its error led to the erroneous conclusion that the contract upheld by the Industrial Magistrate had failed because the necessary intention to enter into a legal relationship had not been proved.”

99. So far as these canon law claims are concerned, it is my view that the issue of whether any contractual civil rights are owed to Catholic Church personnel in Australia under the Code of Canon Law during the assessment of complaints of abuse; that are enforceable by this Court; is one that should be determined at trial. Prior to the introduction of the Towards Healing protocols in 1996, complaints similar to the one against DEF were dealt with via canon law processes in adherence to procedural protections set out in the Code of Canon Law. That document, similarly to the Towards Healing protocols, is arguably drafted in language that manifests an intention to affect legal rights and obligations during an administrative penal process carried out by the Church.

100. As I understand DEF’s claim, he is alleging that provisions of the Code of Canon law apply. He is not asking this Court to make determinations of conformity and validity under canon law. It is my view that these issues should be permitted to go to trial.

101. Further, since the Towards Healing protocols require the Towards Healing process to be consistent with canon law (TH 42.5), the sections of the P2FASC regarding canon law may be relevant to the Towards Healing claim. Hence, it is relevantly pleaded and I decline to strike out the canon law claims.

The natural justice claim

102. DEF seeks to invoke this Court's declaratory jurisdiction under s 69 of the Supreme Court Act in respect of the decisions of the Assessors in the circumstances leading up to the Assessment, and in the circumstances leading to the refusal to provide DEF with the material upon which the assessment report was based. DEF also seeks injunctive relief on this basis.

103. DEF submitted that he had a “legitimate” or reasonable expectation to a fair hearing, and that this legitimate expectation of a fair hearing applies to private associations, where a plaintiff’s income or livelihood is put at risk, or where a plaintiff’s reputation is put at risk.

104. According to DEF, the flaws of the Towards Healing assessment report both damages his reputation unfairly, and puts at risk his livelihood and ministry as a priest; and so the declaratory jurisdiction of this Court under s 69 is enlivened to determine whether procedural fairness has been observed. DEF referred to several authorities in support of this proposition.

105. In regards to livelihood, DEF referred to Field v NSW Greyhound Breeders, Owners & Trainers Association Ltd (1972) 2 NSWLR 948 where Street J found that the declaratory jurisdiction of this Court extended to a case where the disqualification of the plaintiff from a greyhound breeders, owners and trainers association would “almost certainly” result in the cancellation of his registration as a bookmaker, and, so affected his livelihood (at 949).

106. So far as reputation is concerned, DEF first referred to the longstanding authority of Fisher v Keane (1879) 11 Ch D 353 at 363. In that case, Jessel MR held that a private association should not “blast a man’s reputation forever – perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct.”

107. DEF also relied on Annetts v McCann [1990] HCA 57; (1990) 70 CLR 596 at 608 where Mason CJ, Deane and McHugh JJ (Brennan and Toohey JJ dissenting) said:

“Personal reputation has now been established as an interest which cannot be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.”

108. Further, in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 585-592, Brennan J (in additional reasons, but agreeing with the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ) said:

"The judgment of this court in Annetts v McCann shows that where an inquisitorial power is being exercised without observing the rules of natural justice and reputation is at risk, the court may order that the rules of natural justice be observed and the court can thus, to an extent, protect the reputation at risk.

…

Reputation in this context is not restricted to reputation which is valuable in business: natural justice is required to be observed whenever a statutory authority contemplates a publication which would affect reputation by diminishing the estimation in which the bearer of the reputation stands in the opinion of others. The bearer of the reputation has an interest which is subject to adverse affection if the statutory authority publishes the contemplated report and that is sufficient both to attract the requirement of natural justice and to give locus standi to seek judicial review if natural justice is denied.”

109. In the context of where a finding of abuse has been made, DEF referred to Carter v NSW Netball Association [2004] NSWSC 737 where a disciplinary committee found the plaintiff guilty of “child abuse”. In Carter, Palmer J said at [101] and [105]-[107]:

“[101]   It has long been established that the Courts will intervene in the decisions of voluntary or domestic tribunals if the proceeding has not been conducted in good faith and honestly. There are many manifestations of lack of good faith or honesty: they include failure to accord procedural fairness, decisions which are absurd or unreasonable, decisions ‘contrary to fundamental principles of common justice’ and decisions for which there is no evidence: see Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 568-569 per Hayne JA and the cases there cited.

…

[105]   Just as important as the matter of the Plaintiff's future employment is that the Plaintiff is now branded as a ‘child abuser’, both by the decision of the Disciplinary Committee and by her inclusion in the database of the Commission. Most damaging to her reputation and self esteem is that she is branded as a child abuser in her own local community. There could be no doubt in anyone's mind that Mr and Mrs Hirst, Mr Watt and Mr O'Donnell will have lost no opportunity to publicise that the charge of ‘child abuse’, expressly and repeatedly made by the ‘No Excuse for Abuse Committee’ in Mr Watt's letter has been proved against the Plaintiff.

[106]   The words ‘child abuse’ are heavily charged. Our community regards with revulsion those who victimise or prey upon children. A known ‘child abuser’ would be shunned by many, perhaps ostracised. As matters presently stand, by virtue of her entry in the database of the Commission, the Plaintiff can rightly be described by her opponents as a ‘child abuser’ because entry in that database is only made after the conclusion of relevant disciplinary proceedings involving child abuse, sexual misconduct or acts of violence: see CCYP Act s.39(1), s.33. Knowing that the Plaintiff is registered with the Commission, most people would not stay to listen to any explanation by her that the ‘child abuse’ in her case consisted of ‘excessively enthusiastic coaching’ of a netball team, to use the words which the Defendant's Counsel considered apt. The tag ‘child abuser’ is enough in itself to evoke the revulsion embedded in those words.

[107]   Thus it is that the decision of the Disciplinary Committee in the present case has actually produced a consequence which, quite apart from its potential to damage the Plaintiff's future employment prospects, has damaged the Plaintiff's reputation in her community. That the Plaintiff herself perceives her reputation and self-esteem to have been damaged as a result of the Disciplinary Committee's decision is quite clear from her evidence as to the emotional and psychological stress which she has suffered, especially her inability to leave her home to face people.”

110. The cases that DEF referred to in support of the viability of his natural justice claim were cited and approved most recently by Sackar J in Sturt who said at [157]-[158]:

“[157]   I consider it is right however to say that a person has a real interest in ensuring that his or her reputation which the law presumes is good be not unjustifiably damaged as a result of an unfair or oppressive disciplinary procedure. The precise relief available may however be a matter of debate.

[158]   There is no doubt that any findings of sexual misconduct or unchaste conduct would seriously damage a priest's reputation especially if widely published. For example the PSC is empowered (s 20) to release to the public such material as it may determine with respect to any information it receives.”

111. However there have been findings made in the assessment report that there has been serious sexual misconduct by DEF. I accept that the Church Authority will make a decision on DEF’s future ministry and there is a possibility that his reputation has been or will be damaged. Also, DEF has been temporarily suspended from his position as a minister, and faces permanent dismissal. It is my view that it is arguable that his livelihood might depend on this position, and that this is at risk as a result of steps undertaken or purportedly taken under the Towards Healing protocols (see Sturt at [142]). Considering these risks to DEF’s reputation and livelihood it is arguable that this Court's declaratory jurisdiction is enlivened, and that the rules of procedural fairness may need to have been observed during the Towards Healing process and during the preparation of the assessment report. Hence, it is my view that this claim for judicial review is arguable. It is not hopeless.

112. It follows that the Director of Professional Standards’ notice of motion dated 9 July 2015 is dismissed. However, the P2FASC will need to be redrafted.

The plaintiff’s motion

113. By further amended notice of motion filed 9 July 2015, DEF seeks to file the P2FASC which joins the Corporation of the Roman Catholic Bishops of Queensland as the sixth defendant, and the Conference President of Catholic Religious Australia (on behalf of Catholic Religious Australia) as the seventh defendant. Mr Higgins, as counsel for the defendants, also acted in the interests of the Corporation of the Roman Catholic Bishops of Queensland and the Conference President of Catholic Religious Australia on this motion.

114. DEF submitted that the Corporation of the Roman Catholic Bishops of Queensland and Catholic Religious Australia, being the stakeholders responsible for the payment of the Director of Professional Standards’ salary, and for the appointment of the Director of Professional Standards, are vicariously liable for what has occurred. DEF submitted that they must be joined to give effect to any orders for costs which the Court may make at the conclusion of the proceedings.

115. The defendants submitted that they opposed the addition of the sixth and seventh defendants in the P2FASC on the basis that there is no evidentiary basis to assert that the Director of Professional Standards would not comply with the orders of the Court. According to counsel for the defendants, since this is a claim for prerogative relief, not damages, there is no basis for the sixth and seventh defendants to be joined as parties.

116. I am not persuaded that DEF should be permitted to join the sixth and seventh defendants. There was no evidence before this Court that the Director of Professional Standards would not be able to meet a costs order. I disallow these amendments.

The form of the proposed second further amended statement of claim

117. But, as mentioned earlier in this judgment, the P2FASC should be redrafted. In its current state, the P2FASC is confusing and deficient. As mentioned earlier in this judgment, it is unclear whether the canon law claims are abandoned. At present, the Towards Healing claim is interspersed with the canon law claims. Also, the claims for certiorari and production of documents need to be deleted.

118. I grant leave to DEF to redraft his pleadings and file a second further amended statement of claim by 16 December 2015.

119. Costs are reserved.

The Court orders that:

(1)   The third defendant’s notice of motion filed 9 July 2015 is dismissed.

(2)   The plaintiff is granted leave to file a second further amended statement of claim.

(3)   The second further amended statement of claim is to be filed and served on or before 16 December 2015.

(4)   Costs are reserved.

(5   The matter is listed for directions at 9.00 am before the Registrar on 3 February 2016.

**********

Amendments

09 December 2015 - Para [69] repetition of citation removed

Decision last updated: 09 December 2015