Fielding v Houison

The case of *Fielding v Houison* concerned appeals from a decision of the Chief Judge in Equity of the Supreme Court of New South Wales regarding the disposition of rents and profits from glebe lands annexed to St. Phillip's Church, Sydney. The suit was initiated by the trustees of these glebe lands seeking a declaration of their duties. The primary dispute involved the claim by certain officiating ministers of other churches that they were entitled to receive annual payments from these surplus rents by way of stipend, which they argued constituted a perpetual endowment.

The central legal issue before the High Court of Australia was the interpretation of section 21 of the *Church of England Act 1837* (8 Wm. IV. No. 5). Specifically, the court had to determine whether the provisions within section 21, which allowed for the application of surplus rents towards building other churches and endowing their officiating ministers to the extent of £100 yearly, created irrevocable trusts for those ministers. A further issue was whether subsequent legislation, namely the *Sydney Church Ordinance 1891* and the *Church Acts Repealing Act 1897*, affected these trusts.

A majority of the High Court, comprising Griffith C.J., Barton, O'Connor, and Isaacs JJ., held that section 21 of the 1837 Act intended for the glebe lands to be held in trust for the permanent endowment of officiating ministers of churches that the trustees, with the Bishop's consent, brought within the trust. The Court reasoned that the act of endowing a minister under this section was akin to an appointment under a power, creating an express and irrevocable trust for that endowment, irrespective of any changes in the clergy. This interpretation was considered to be consistent with the historical understanding of "glebe" and "endowment" in the context of the Church of England at the time of the Act's enactment. The majority further found that the *Sydney Church Ordinance 1891* and the *Church Acts Repealing Act 1897* did not invalidate or alter these pre-existing trusts, as the Synod's powers were limited by the Constitutions of the Church of England (N.S.W.) 1866, which prohibited the diversion of property subject to specific trusts.

The Court varied the decision of the Chief Judge in Equity. It was held that the appellants, representing the officiating ministers of churches that had been endowed, were entitled to have these payments continued as of right, as they constituted irrevocable trusts. The case of *Dunstan v. Houison* was overruled. However, there was a divergence of opinion on the validity of the *Sydney Church Ordinance 1891*, with some judges finding it invalid in its inception as it purported to alter existing trusts, while others considered it not invalid but its operation limited by existing express trusts.