Graham v Baptist Union of New South Wales

[2006] NSWSC 357

CITATION:	Graham v Baptist Union of New South Wales [2006] NSWSC 357
HEARING DATE(S):	26/04/06
JUDGMENT DATE :	28 April 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Interlocutory injunctions granted
CATCHWORDS:	CHURCHES AND RELIGIOUS ASSOCIATIONS - complaint against minister - resort to investigatory and disciplinary processes provided for in by-laws - application for interlocutory injunction to restrain such processes until further order - whether minister afforded natural justice - minister indicated unwillingness to participate except on certain conditions - decision adverse to him at meeting of which he had no notice - appeal lodged by minister - moves to implement decision although appeal pending - serious questions to be tried as to denial of natural justice - balance of convenience favours plaintiff
LEGISLATION CITED:	Baptist Union Incorporation Act 1919
CASES CITED:	Australian Workers Union v Bowen (No. 2) (1948) 77 CLR 601 Calvin v Carr (1979) 1 NSWLR 1 Cameron v Hogan (1934) 51 CLR 358 Cayne v Global Natural Resources plc [1984] 1 All ER 225 Macqueen v Frackelton (1909) 8 CLR 673
PARTIES:	Phillip Graham - Plaintiff Baptist Union of New South Wales - Defendant
FILE NUMBER(S):	SC 2475/06
COUNSEL:	Ms J.I. Ghabrial - Plaintiff Mr P.F. Singleton - Defendant
SOLICITORS:	Parke Maher Solicitors - Plaintiff Turner Whelan Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 28 APRIL 2006

2475/06 PHILLIP GRAHAM v BAPTIST UNION OF NEW SOUTH WALES

JUDGMENT

1 The plaintiff is a Baptist minister who has been the pastor of the congregation at Belmont North since 2000. The defendant is a body constituted by the Baptist Union Incorporation Act 1919 and is described in its by-laws as "the State-wide body through which affiliated local Baptist churches work together to fulfil the objects stated in these by-laws".

2 Baptists believe in the “priesthood of all believers”, derived from the First Epistle of Peter, Chapter 2, Verse 9, which means that no believer is superior to any other in matters of faith and worship, so that the clergy are not the repository of special functions. Within the Baptist clergy, there are two types of ministers: those who are “recognised” ministers and those who are “recognised and accredited” ministers. The latter, but not the former, carry the title “Reverend” within the community of which the defendant is the coordinating body, although individual congregations may sometimes call their minister “Reverend”, regardless of his or her designation by the defendant. Each congregation selects and ordains its own minister. The defendant does not allocate ministers to congregations.

3 The plaintiff is accepted by the defendant as a recognised and accredited minister. The present proceedings are concerned with his status as an accredited minister, in other words, with his accreditation.

4 By his summons filed on 24 April, the plaintiff seeks permanent injunctive relief in respect of proposed actions of and within the defendant which may lead to deprivation of his status as an accredited minister. He also seeks declaratory relief as to what one might term the allegedly flawed nature of certain decision making within the defendant.

5 As an interlocutory measure, the plaintiff seeks by notice of motion filed on the same day an injunction restraining the defendant until further order from proceeding further with certain disciplinary proceedings against him and from accepting the recommendation of a particular committee that he should be removed from the list of accredited ministers.

6 I heard the interlocutory application over most of Wednesday, 26 April 2006. Certain written submissions were filed yesterday, 27 April. I indicated that, since a crucial point for the parties is Saturday 29 April 2006, I would give judgment this morning, as I now do.

7 The disciplinary proceedings about which the plaintiff complains arose as a result of a complaint made against him by one individual. The defendant initially referred the matter to an internal body concerned with sexual harassment matters, but it was immediately clear that there was no suggestion at all of sexual impropriety and the matter was then progressed in another way.

8 It is necessary to trace the steps taken after the making of the complaint. The plaintiff was informed of the complaint and, in very broad and general terms, of its nature and substance by a letter dated 4 August 2005 from the chairman of the defendant's Committee for the Ministry. That committee is constituted under and governed by by-laws made under the Act of 1919. The letter informed the plaintiff of the appointment of an investigator, Mr Yee, and that the investigator would report to what was referred to as the “Discipline Committee”, which is in reality a sub-committee of the Committee for the Ministry. The letter concluded:

“If he [that is to say the investigator] reports that there is a case to be answered, you will be given the opportunity to appear before the committee in order to defend yourself. You will, of course, be informed of the results of the investigation whether there is a case to be answered or not.”

9 On 2 September 2005, the chairman of the Discipline Sub-committee of the Committee for the Ministry wrote to the plaintiff and sent him a copy of the complainant's written statement. It was an unsigned copy. The letter said that the committee was in possession of a signed copy.

10 I should interpolate here that the provisions concerning proceedings of the Discipline Sub-committee provide for the appointment of an investigator whose task it is to investigate "the veracity of the complaint" and to report to the sub-committee. It is appropriate at this point to refer to the steps laid down by those provisions:

“iii. An investigator is to be appointed by the Sub-Committee to proceed investigating the veracity of the complaint. Upon the completion of their investigation, a report be given to the Sub-Committee.

iv. The Sub-Committee is to consider the report to determine whether there is a case to answer. If so, then the complainant and accused are to be provided opportunity to address and respond to the investigator’s report and statements made by the other. The complainant and the accused may be accompanied by a support person to any meeting held in relation to the complaint. The support person shall not have the right to speak unless invited to do so by the chairperson.

v. For a complaint to be upheld, the Sub-Committee must be satisfied that ‘on the balance of probabilities’ the allegations are true.

vi. The Sub-Committee shall report their findings to the Committee for the Ministry and may make a recommendation in regard to any possible action. If there is no reason to support the allegations, reasonable steps are to be taken to ensure that the accused person’s name is cleared.

vii. The Committee for the Ministry will determine whether any appropriate action is to be taken. The accused and the complainant are to be informed of the Committee’s determination.”

11 I return to the chronology. After receiving a copy of the complainant's written statement which, having been sent on 2 September, a Friday, reached him on Monday 5 September, the plaintiff informed Mr Yee on 9 September that his adviser was away and that the plaintiff would be discussing the matter with the adviser on the adviser's return. On 23 September, the plaintiff informed Mr Yee that he had discussed the matter with his adviser and would need some time to consider his response.

12 On 4 October, Mr Yee followed up the plaintiff by e-mail, pointing out that he had had the allegations for about one month, which should have been sufficient time for the plaintiff to consider the matter. Mr Yee said that he would like to interview the plaintiff on "this coming Wednesday, Thursday or Friday or another mutually acceptable time". The nominated days were 5th, 6th and 7th October.

13 On the same day, 4 October, the plaintiff replied to Mr Yee by e-mail saying that he was prepared to meet with Mr Yee in Maitland and would confirm a convenient time as soon as he received certain things from Mr Yee, namely, a detailed agenda for the meeting and copies of all “testimony”, as he called it, received by Mr Yee from persons other than the complainant.

14 On 6 October, Mr Yee replied by e-mail giving the requested agenda and details of the way in which he would wish to proceed. As to the second matter, of so-called “other interviews”, Mr Yee said that his legal adviser had told him that it was not necessary for the plaintiff to have these and that all that the plaintiff needed to have was the complainant's complaint.

15 The plaintiff e-mailed Mr Yee on 11th October, taking issue with what Mr Yee had said about “other interviews”. The plaintiff said that he would require copies or transcripts of everything submitted to "the committee" (presumably the Discipline Sub-committee or Mr Yee). This e-mail also pointed out that the copy of the complainant's complaint given to the plaintiff was undated, unaddressed and unsigned. He said he wanted a photocopy of the original. I have already mentioned the statement of the chairman of the Discipline Sub-committee to the effect that a signed copy of the complaint was held.

16 On 11 October, Mr Yee e-mailed the plaintiff saying that, in relation to withholding statements received from so-called “witnesses”, he was acting on legal advice and that, so far as the complainant's complaint was concerned, the copy already given to the plaintiff was a complete copy. Mr Yee proposed 13 or 14 October for his meeting with the plaintiff.

17 On 12 October, the plaintiff e-mailed Mr Yee noting that transcripts of interviews were regarded as essential and that since these would not be given to him, all future correspondence should be with his solicitor, Mr Parke.

18 On 21 October, the chairman of the Discipline Sub-committee sent a letter to Mr Parke enclosing a letter for the plaintiff, saying that the sub-committee had, on the previous day, considered a report from Mr Yee and believed it raised questions concerning the plaintiff's character and suitability for the Christian ministry. A copy of Mr Yee's report was enclosed. The plaintiff was invited to meet with the sub-committee "to address and respond to the report's contents". Some time between 1 and 14 November was indicated as suitable to the sub-committee "if not earlier". The plaintiff was informed that if a positive response was not received from him by 31 October, the sub-committee would nevertheless continue with its consideration of the allegations. The letter pointed out that the plaintiff was entitled to be accompanied by a "support person" who could not speak unless invited by the chairman of the sub-committee to do so.

19 Enclosed with the letter of 21 October was a copy of Mr Yee's report. The report refers to four persons, in addition to the complainant, from whom Mr Yee had received information.

20 Correspondence ensued in which the plaintiff, through his solicitor, maintained a right to have all the statements and materials Mr Yee had taken into account; and the Discipline Sub-committee denied that there was any such right. Correspondence bogged down on that issue, with the sub-committee making it clear that the process would continue without provision of the material the plaintiff sought and in the absence of any interview or discussion with him if he continued to make himself unavailable.

21 On 18 November, the chairman of the Committee for the Ministry informed the plaintiff, through his solicitor, that that committee had resolved to recommend to the New South Wales Baptist Union Assembly, to be held on 29 April 2006, that the plaintiff's name be removed from the list of accredited ministers on two grounds: first, "behaviour inconsistent with the character expected of someone in ordained Christian ministry"; and, second, "unwillingness to meet with the investigator or Discipline Sub-committee to provide a response to the complaint".

22 The first matter, clearly enough, related to the substance of the complainant's complaint, while the second reflected apparent disapproval of the stance taken by the plaintiff in relation to the investigatory processes, which stance, it may be inferred, was seen as reflecting unacceptable intransigence.

23 This letter of 18 October also drew attention to the plaintiff's appeal rights. It quoted the relevant provision of the applicable internal rules as follows:

“The complainant or the accused may appeal against the process or decision of the Committee for the Ministry to the Baptist Union Executive, who may appoint a committee of three persons to determine the matter. An appeal must be brought within one month of the behaviour or decision which is being challenged.”

The letter of 18 November, it may be noted, was sent more than five months before the meeting of the Baptist Union Assembly to which the Committee for the Ministry had resolved to forward its recommendation.

24 The plaintiff's solicitor wrote a long letter dated 14 December 2005 to the official nominated in the letter just mentioned as the appropriate recipient of any appeal. The letter expressed concern about apparent uncertainties concerning the appeal process and the applicable rules and procedures. A notice of appeal was forwarded with the letter but without prejudice to the plaintiff's right to take other action. The letter said that statements had been obtained on the plaintiff's behalf from a number of relevant persons supporting the plaintiff's denial of the allegations against him. The enclosed notice of appeal consisted of a number of recitals introduced by the word "whereas", followed by operative words indicating that the plaintiff appealed against, first, "the process of the Committee for the Ministry" and second, "the decision of the Committee for the Ministry.”

25 From that point, a long and increasingly legalistic correspondence ensued. I do not say that in a way intended to be critical of anyone. A letter of 2 February 2006 from Mr Soden, the secretary of the defendant, to the plaintiff's solicitor, enclosed the guidelines of the Discipline Sub-committee and pointed out provisions relevant to appeals. Attention was drawn to the provision allowing the Baptist Union Executive to appoint a committee of three persons to determine an appeal. It was stated that the executive committee would be meeting on 7 February and would appoint such an appeal committee.

26 A letter of 15 February from Mr Soden to the plaintiff's solicitor stated that the committee to hear the appeal had been appointed and named the three ministers who were to constitute that committee. Mr Soden asked to be informed, as a matter of urgency, whether the plaintiff intended to proceed with the appeal and, if he did, the times he would be available to meet the committee.

27 On 28 February, the plaintiff's solicitor wrote to Mr Soden informing him that the plaintiff intended to proceed with the appeal. The solicitor said that a time for the plaintiff to be available could not be nominated until he had received a copy of the rules of procedure and process for the appeal requested on 1 February and copies of "interview transcripts" requested on specified dates in October and November, none of which had been forthcoming.

28 Mr Soden replied on 2 March. He said that the process rules had been sent with the letter of 2 February but nevertheless enclosed another copy. Mr Soden said, regarding "interview transcripts", that he was in the process of determining what, if any, were made and that he would "provide all relevant information that is available as soon as possible". He added that the letter of 28 February was the first unequivocal statement that the plaintiff would participate in the appeal process, that the appeal should be dealt with expeditiously, that there was no reason why there should not be a hearing before Easter (that is, mid-April), and that the only evidence that would be relied on in the appeal was the complainant's complaint and the correspondence between the church and its committees on the one hand and the plaintiff and his solicitor on the other.

29 On 7 March, the Baptist Union's honorary legal adviser, Mr Geoffrey Moore of counsel, wrote at length to the plaintiff's solicitor by way of amplified reply to their letter of 28 February. Among other things, he said that there had been only one interview transcript created by Mr Yee, being a transcript of his interview of the complainant. A copy of this was sent to the plaintiff's solicitor by way of enclosure. It was confirmed that the only materials Mr Moore, as counsel assisting, proposed to put before the appeal committee was the complainant's original statement and the correspondence, including Mr Yee's report and the transcript of Mr Yee's interview of the complainant.

30 On 15 March, the plaintiff's solicitor wrote to Mr Soden referring to his letter of 2 March and raising a number of questions and concerns about the appeal process. This was copied to Mr Moore, who replied in some detail on 16 March.

31 Mr Moore wrote again on 28 March rehearsing details of various relevant events, noting that the plaintiff had not forward, as requested, the statements on which he intended to rely in relation to the appeal and saying that it was assumed that the plaintiff did not wish to proceed with the appeal. Mr Moore concluded by saying that the recommendation of the Committee for the Ministry that the plaintiff's name be removed from the list of accredited ministers would be presented to the Assembly at its meeting on 29 April.

32 Also on 28 March, the plaintiff's solicitor sent to Mr Moore copies of statements by the plaintiff and three other persons. Mr Moore replied on the same day saying that the plaintiff had had since 21 October 2005 to supply such statements and that the position taken in Mr Moore's earlier letter stood. The plaintiff's solicitor wrote again to Mr Moore on the same day saying, among other things, that the plaintiff intended to pursue the appeal.

33 The next day, 29 March, Mr Moore wrote to the plaintiff's solicitor pointing out that the four statements forwarded by the solicitor on the previous day had been in existence as early as December 2005 but had not previously been furnished. He also referred to a previously imposed deadline of 24 March for the provision of statements. Importantly, Mr Moore made the point that the statements contained "no evidence which goes to either the correctness of the process or the correctness of the decision" adding that "these are the only bases of your client's appeal". Mr Moore offered the observation that an appeal would be pointless on the evidence identified by the plaintiff. Elsewhere in the correspondence, Mr Moore expressed the opinion that an appeal would not involve a hearing de novo.

34 The plaintiff's solicitor wrote to Mr Moore on 20 April asking whether, in view of various matters referred to in the correspondence which were seen as “confusing”, the appeal committee still considered an appeal to be on foot or whether, as the solicitor considered Mr Moore to have indicated, the appeal had been dismissed. Mr Moore replied as follows on 20 April:

“There is no confusion in my earlier correspondence, unless the reader wishes to remain confused. You were given a deadline to serve statements relating to the issues raised by the appeal. As previously pointed out in several letters, the appeal is not a hearing de novo, rather, it is an appeal in relation to the process and in relation to the appropriateness of the decision on the information available to the decision-maker. Your client elected not to put the statements, which were faxed after the imposed deadline had passed, before the decision-maker last November.

Further, the statements which were faxed after the imposed deadline had passed do not address issues of process nor do they as to the appropriateness of the decision on the information available to the decision maker. This is why it is inappropriate for there to be an appeal even if the deadline had been adhered to. The suggestion that your client could again approach the sub-committee was made against that background. Further, your client elected not to avail himself of that opportunity.”

35 Significantly, Mr Moore added:

“As previously advised, the recommendation of the Committee for the Ministry will be put to the April assembly on 29 April 2006 at Windsor Baptist at 10am.”

36 This last message was confirmed in a letter from Mr Soden dated 24 April. It was on that day that these proceedings were commenced.

37 Upon the application for interlocutory relief, there was no suggestion that the parties' dispute is a domestic dispute which is not justiciable or not amenable to the jurisdiction of the court on bases discussed by the High Court in the well known cases of Macqueen v Frackelton (1909) 8 CLR 673 and Cameron v Hogan (1934) 51 CLR 358. Nor was there any disagreement that principles of natural justice and procedural fairness apply to the processes by which the defendant has dealt with and proposes to continue to deal with the allegations against the plaintiff.

38 The basic contention of the plaintiff is that there is a serious question to be tried as to whether the rules of natural justice and procedural fairness have been observed in this case. There are several matters which are said to require a finding of a serious question to be tried.

39 First, it is submitted on behalf of the plaintiff that he has been denied natural justice because, despite numerous requests, he has not been given a copy of the complainant's signed and dated statement - the copy given is unsigned and undated - or any of the statements and interviews of other persons relied upon by Mr Yee in compiling his report. It is also said, under this heading, that the copy of the transcript of Mr Yee's interview of the complainant given to the plaintiff is incomplete, although how that could be known simply by reading the transcript (which is in evidence) is not clear to me.

40 The second matter on which reliance is placed in relation to the issue of serious question to be tried is that the Discipline Sub-committee met on 17 November 2005 and resolved to recommend to the Committee for the Ministry removal of the plaintiff's name from the list of accredited ministers, without either notifying the plaintiff that that meeting was to consider the plaintiff's case or affording the plaintiff an opportunity to attend on a particular date and at a particular place to defend himself.

41 The third matter put forward as entailing a serious question to be tried, as to observance of principles of natural justice, is the apparent decision not to deal with the plaintiff's appeal.

42 The starting point in considering these matters is the internal rules dealing with the Discipline Sub-committee. Those rules expressly provide for natural justice. I quote one of the provisions:

“Principles of natural justice shall be applied throughout. This includes giving each party the opportunity of adequately stating their case and correcting or contradicting any relevant statement prejudicial to the person's case. Each party is to be given the opportunity to respond to statements made by the other.”

43 Specific provisions implementing this principle then follow. I have already set them out but their substance may be noted again. There is provision for complaints to be referred, in the first instance, to the Discipline Sub-committee. The so-called "accused" is to be given particulars of the complaint. The Sub-committee is to appoint an investigator, in this case Mr Yee. The investigator's task is to investigate the veracity of complaint, to prepare a report and to give the report to the Discipline Sub-committee. The task of the sub-committee at that point is to decide whether there is a case to answer. If the sub-committee forms the view that there is a case to answer, then both the complainant and the accused are to be given an opportunity to address and respond to two things: first, the statements made by the other (that is, the accused may address and respond to statements made by the complainant and the complainant may address and respond to statements made by the accused); and, second, the investigator's report. Both the complainant and accused may be accompanied by a "support person" who may not speak unless invited to do so by the chairperson.

44 The defendant maintains that these processes satisfy the requirements of natural justice. Mr Singleton of counsel, who appeared for the defendant, referred to the observation of the Privy Council in Calvin v Carr (1979) 1 NSWLR 1 at p.12, to the effect that agreed methods of dealing with domestic disputes need not reflect the formalities of judicial processes. Mr Singleton also referred to a passage in the judgment of Dixon J in Australian Workers Union v Bowen (No. 2) (1948) 77 CLR 601 at p.628 where his Honour said:

“It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applying to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions.”

45 According to the submissions made on behalf of the defendant, a system under which a disciplinary tribunal makes a decision based on statements of the complainant and the person to whom the complaint relates, together with a report made by an investigator is not of its nature at odds with the principles of natural justice. That may well be so. But an integral part of such a system is the ability of and an opportunity for the person concerned to put matters in his defence before the decision making body.

46 In the present case, the immediate decision-making body was the Discipline Sub-committee of the Committee for the Ministry. Both the sub-committee and the committee itself met and made relevant decisions on 17 November 2005. The plaintiff was informed, by the letter dated 21 October 2005, that the sub-committee would be considering the matter involving him. The letter nominated possible dates and indicated a willingness of the sub-committee to travel to the Hunter area to meet with him. The letter from the plaintiff's solicitor of 31 October made it clear that receipt of the statements on which Mr Yee's report was based was a condition of the plaintiff's even considering the possibility of meeting with the sub-committee.

47 The sub-committee's chairman's letter of 1 November 2005 expressed an assumption that the plaintiff was not willing to cooperate with the enquiry. It said that the sub-committee proposed to proceed and stated a basis on which it would do so. It is pertinent to quote from that letter:

“The committee proposes to proceed on the basis of the information it has been provided to determine whether the allegations are true. If the complaint is found to be upheld, then the sub-committee will forward a recommendation to the Committee for the Ministry at its meeting on November 17th. The Committee for the Ministry will consider whether any appropriate action is to be taken.”

48 The longer letter from the sub-committee chairman dated 4 November referred to the fact that the plaintiff had declined, on several occasions, to tell his story to Mr Yee. It said that the sub-committee was proceeding with the matter and would bring its report and recommendation to the Committee for the Ministry "in the near future".

49 The plaintiff's solicitor's letter of 10 November took issue with the proposition that the plaintiff had not agreed to meet, pointing out that he had not said that he would not meet with the committee if he was provided with the requested statements. The words in that part of the letter are obviously carefully chosen.

50 The chairman's letter of 14 November said that the Discipline Sub-committee "proposes to continue its procedures this week and to bring a recommendation to the Committee for the Ministry this Thursday". It may be noted that 14 November was a Monday, so the reference to “this week” was impliedly a reference to 14, 15, 16 or conceivably 17 November.

51 It is clear from this that the plaintiff was never actually told that the Discipline Sub-committee would meet on 17 November to consider the complaint against him. The date 17 November was mentioned in the chairman's letter of 1 November as the date of the meeting of the Committee for the Ministry, to which the sub-committee's recommendation would be submitted. Necessarily implied, of course, is the proposition that the sub-committee would have met sometime before the meeting of the Committee for the Ministry on 17 November. The letter of 14 November made it clear that the sub-committee's meeting would be sometime in the week beginning Monday 14 November, being a time such as to permit the sub-committee's recommendation to be considered at a meeting of the Committee for the Ministry on 17 November.

52 It therefore appears that the deliberations of the Discipline Sub-committee occurred at a place and on a date and at a time of which the plaintiff was not made aware. He was, therefore, in no position to attend and speak in his defence, as contemplated by the rules of the Discipline Sub-committee. It is true that he had taken the stance that he would not attend, except perhaps if certain conditions laid down by him were satisfied. But it is by no means clear that the sub-committee was entitled to assume that he would remain firm in that stance. Just as litigants committed to battle to the bitter end often settle on the court steps, so too someone who has expressed himself adamant in his resolve not to attend a meeting of the Discipline Sub-committee might have changed his mind as the hour for a decision as to his fate approached.

53 There is a serious question to be tried as to whether, in the respect I have just outlined, the plaintiff was denied natural justice or, to put it another way, was not afforded procedural fairness. I accept the submissions of Ms Ghabriel of counsel for the plaintiff on this point.

54 I proceed to consider whether there is also a serious question to be tried on whether the plaintiff was denied natural justice by an apparent decision not to deal with his appeal.

55 The correspondence makes it clear that the plaintiff took steps, in accordance with the applicable provisions, to appeal from the decision adverse to him. An appeal committee was appointed, the plaintiff was informed of this and of the names of its members. This happened on 15 February.

56 Thereafter a long and detailed correspondence ensued, in which Mr Moore played an increasingly prominent part. He was designated to be counsel assisting the appeal committee. Whether it was in that capacity or in some other role as the legal adviser to the defendant that he set deadlines and expressed opinions about the nature of the appeal and the issues to which the appeal was confined and as to the pointlessness of the appeal, does not appear. What is clear is that the plaintiff has never had an opportunity to place anything before the appeal committee which, so far as the evidence shows, has never met or had before it anything concerning the plaintiff. Yet various representations have made it clear that the recommendation of the Committee for the Ministry adverse to the plaintiff will be placed before the Assembly on 29 April.

57 I am satisfied that there is a serious question to be tried as to a denial of natural justice to the plaintiff, in connection with the due progress towards hearing and determination of an appeal, apparently validly and regularly initiated by him. Again, I accept Ms Ghabriel’s submissions.

58 In view of my findings to this point it is unnecessary for me to address directly the question whether natural justice requires that the plaintiff be given copies of the statements that Mr Yee had before him, that being his central concern, or one of them. That issue can be taken up at trial.

59 Because I have found that there is a serious question to be tried as to two of the matters said by the plaintiff to entail lack of procedural fairness and disregard for the principles of natural justice, I must consider the balance of convenience, that is, whether the defendant will suffer greater hardship through a grant of the interlocutory injunction than the plaintiff will suffer if it is refused. The court must weigh up the comparative injury that will arise from granting or withholding the injunction, seeking out the major risk of damage and, in particular, of any irreparable damage. This aspect was referred to in Cayne v Global Natural Resources plc [1984] 1 All ER 225 as "the balance of the risk of doing an injustice".

60 If there is no interlocutory injunction and the recommendation unfavourable to the plaintiff goes before the Assembly tomorrow, 29 April, the plaintiff may suffer removal of his name from the list of accredited ministers. That will not directly impact upon his ability to continue as pastor of the congregation at Belmont North. He will still be a recognised minister and therefore qualified to hold the position he currently holds. He will not, however, be entitled to the title "Reverend", at least in the eyes of the defendant Baptist Union, although it is conceivably possible, as I understand it, that the congregation might itself continue to accord him that title.

61 There was some debate before me about whether removal of the plaintiff’s name from the list of accredited ministers would carry with it any form of opprobrium. It was pointed out that such removal often occurs at a person's own request where, for example, the person, for reasons of doctrinal difference or otherwise, no longer wishes to be associated with the Baptist Union in the way that accreditation involves. In the present case, however, these proceedings, conducted in open court and with judgment published accordingly, coupled with correspondence in evidence from members of the Belmont North congregation making it clear that the community is aware of the fact that disciplinary proceedings are on foot, mean that there is no real likelihood that the case would be seen to be one where the plaintiff's name has been removed at his own request. Opprobrium might well be attracted.

62 I should add, in that connection, that the correspondence from members of the congregation at Belmont North expresses support for the plaintiff, but as to procedural fairness. The persons who wrote the letters are not, it seems, aware of the substance of the complaint against the plaintiff.

63 From the defendant's perspective, there are, I think, two relevant considerations so far as the balance of convenience is concerned. First, there is the general health of the church community and its interest in seeing that blemished persons are not endorsed or approved. But whether the plaintiff is, in truth, a blemished person depends on the outcome of due process, something which has not yet occurred. Otherwise the hardship the defendant will suffer, if an interlocutory injunction is granted, will come from the possible need to convene a special meeting of the Assembly of the Baptist Union, assuming that the matter involving the plaintiff becomes ripe for consideration by the Assembly before its next regularly scheduled meeting in September.

64 A special meeting would, no doubt, be inconvenient. Some 340 individual churches in New South Wales are members of the Baptist Union. Each is entitled to send representatives to a meeting of the Assembly. The number of churches typically represented at an assembly meeting, according to Mr Soden, is of the order of 150. Under the by-laws, a special assembly can be convened by 14 days' notice.

65 Assemblies are held on the premises of a particular church and it is the custom for the defendant to make a contribution to the church in question in recognition of its making its facilities available. There are costs associated with a special assembly, both for the defendant and for individuals who attend and congregations who send them, sometimes from distant parts of the State. There may be travelling expenses that are reimbursed for those attending. This matter of costs is one which the plaintiff seeks to deal with by making it clear that the usual undertaking as to damages, which he offers, extends to costs actually incurred by the defendant and other persons in convening and attending any special meeting of the assembly.

66 My conclusion is that the risk of doing an injustice to the plaintiff, by refusing the interlocutory injunction, outweighs the risk of doing an injustice to the defendant by granting the injunction. My reason for this conclusion is essentially that, while there will be no direct and immediate impact upon the plaintiff's livelihood, there is potential for a down-grading of his status within the church to produce such an impact in the longer term, whereas direct impact upon the defendant is confined to the financial matter of the possibility of a special meeting, as to which the enhanced undertaking as to damages provides a sufficient counter-balance.

67 It remains to deal briefly with the submission of the defendant that the plaintiff has been guilty of delay in bringing the proceedings, being delay of a disqualifying kind. On that I would merely say that it was not until quite recently that the defendant made it clear that the plaintiff's appeal had been effectively by-passed and ignored and that the matter concerning the plaintiff would proceed to the Assembly on 29 April, notwithstanding that the appeal committee had never met and never had the matter before it. Delay does not attract exercise of the court's discretion against the plaintiff in this case.

68 Upon the plaintiff, by his counsel, giving to the court the usual undertaking as to damages (including as to outlays actually incurred by the defendant and other persons in connection with any special meeting of the Assembly of the Baptist Union to consider any proposal for the removal of the plaintiff's name from the list of accredited ministers), I make orders 4 and 5 in the notice of motion filed on 24 April 2006.

[Counsel addressed]

69 Costs of the interlocutory application will be costs in the cause.

70 I direct that the proceedings be placed in the expedition list on Friday 12 May 2006. I grant liberty to apply to me on the question of costs in the event that the matter is resolved.

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