Harrington v Coote
[2013] SASCFC 154
•23 December 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HARRINGTON & ORS v COOTE & ANOR
[2013] SASCFC 154
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
23 December 2013
CHURCHES AND RELIGIOUS ASSOCIATIONS - CONSTITUTION, MANAGEMENT AND POWERS - JURISDICTION OF COURT - GENERALLY
CHURCHES AND RELIGIOUS ASSOCIATIONS - GENERAL MATTERS - CHURCHES - GENERALLY - NATURE OF ASSOCIATION
CHURCHES AND RELIGIOUS ASSOCIATIONS - CONSTITUTION, MANAGEMENT AND POWERS - POWERS OF SYNOD
The first defendant was a licensed Priest of the Anglican Church. On 13 August 2007, the Professional Standards Committee of the Diocese of the Murray received and investigated a complaint of sexual misconduct alleged against the first defendant. Questions of the first defendant's fitness to hold office were referred to the Professional Standards Board of the Anglican Diocese of the Murray. The first defendant was suspended from the clergy. The Board made recommendations concerning the questions of fitness. These recommendations were set aside upon review and a fresh review conducted by a newly constituted Board. The Board made determinations and recommended that the first defendant be suspended from holding office. The first defendant sought a review of the Board's determinations. On 27 April 2011, the second defendant was appointed reviewer. The second defendant held that the Professional Standards Ordinance under which the Board had acted was valid, but that it did not authorise the nature of the inquiry which had been undertaken regarding the first defendant.
The plaintiffs - who are five members of the Professional Standards Committee, the administrator of the Diocese of The Murray and the Synod of the Diocese of The Murray of the Anglican Church of Australia Incorporated - seek declarations that the Professional Standards Board had jurisdiction to determine a reference made by the Professional Standards Committee and that the second defendant's determination that the Professional Standards Ordinance 2007 does not authorise an inquiry into the conduct of the first defendant during the period 1994-1998 is invalid. An injunction is sought restraining the second defendant from making any determination or order under the Professional Standards Ordinance 2007.
Whether the matter is justiciable. Whether the Professional Standards Ordinance 2007 is invalid by reason of being inconsistent with the Constitution of the Anglican Church of Australia. Whether the Professional Standards Ordinance 2007 authorises an inquiry by the Professional Standards Board into the fitness for office of the first defendant for the time period 1995 to 1998. Whether the second defendant's determination is invalid.
Held (Kourakis CJ and Gray J, Peek J agreeing):
(1) The matter is justiciable.
(2) The Professional Standards Ordinance 2007 is not invalid.
(3) The Professional Standards Ordinance 2007 authorises an inquiry by the Professional Standards Board into the fitness for office of the first defendant for the time period 1995 to 1998.
(4) The second defendant misunderstood the nature of the inquiry undertaken by the Board and did not address the issue for review. He failed to recognise the difference between disciplinary proceedings and the process of an inquiry into the fitness to hold an office as a member of the clergy.
(5) Declaration made that the Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 had jurisdiction under Part 8 of that Ordinance to determine the reference made on 28 February 2008 by the Professional Standards Committee appointed under Part 4 of the Ordinance.
(6) Injunction granted restraining Mr Morcombe QC from making any determination under section 74N or any order under section 74O of the Professional Standards Ordinance 2007.
Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49; Nurses Memorial Centre of South Australia Inc v Beaumont (1987) 44 SASR 45; Millar v Houghton Table Tennis and Sports Club Inc (2003) 225 LSJS 241; Macqueen v Frackelton (1909) 8 CLR 673; Baker v Gough [1963] NSWR 1345; Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432; Harrington & Ors v Coote & Anor [2012] SASC 205; Harrington & Ors v Coote & Anor (No 2) [2012] SASC 206; TCL Airconditioner (Zhonshan) Co Ltd v Judges of the Federal Court of Australia (2013) 87 ALJR 410; Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314; Micovski v Financial Ombudsman Service Ltd (2012) 91 ACSR 106; Melbourne Anglican Trust Corporation v Greentree [1997] VSC (No 4387); Cameron v Hogan (1934) 51 CLR 358; Scandrett v Dowling (1992) 27 NSWLR 483; Sturt v Bishop of Newcastle [2012] NSWSC 400; Gent v Robin & The Synod of the Church of England, Adelaide [1958] SASR 328; Australian Football League v Carlton Football Club [1998] 2 VR 546; Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643; Ward v Ethertington [1982] Qd R 561, considered.
HARRINGTON & ORS v COOTE & ANOR
[2013] SASCFC 154Full Court: Kourakis CJ, Gray and Peek JJ
KOURAKIS CJ: I gratefully adopt the summary of the history of the enquiries into the conduct of the first defendant, Mr Coote, and the determinations of the domestic tribunals of the Anglican Church of Australia (the Anglican Church) provided in the judgment of Gray J. Like Gray J, I too would receive the disputed evidence but ultimately I have not had cause to rely on it.
The questions arising in this action and my answers to them are as follows:
1.Is the matter justiciable — Yes.
2.Is the Professional Standards Ordinance 2007 invalid by reason of being inconsistent with the Constitution of the Anglican Church of Australia (the National Anglican Constitution) — No.
3.Does the Professional Standards Ordinance 2007, on its proper construction, authorise an inquiry by the Professional Standards Board (the Board) into the fitness for office of Mr Coote even though the conduct alleged against him took place between approximately 1995 and 1998 — Yes.
4.Is the determination of the second defendant, the Reviewer, that the Professional Standards Ordinance 2007 did not authorise the inquiry into the first defendant’s conduct which predated the making of the 2007 Ordinance, a final determination of the question which binds the parties to these proceedings — No.
5.Did the Board exceed its jurisdiction in having regard to the code approved under the Professional Standards Ordinance 2007, and, if so, should the plaintiff’s application for declarations for that reason be dismissed – The Board did not exceed its jurisdiction.
My reasons for so holding follow.
1. Is the matter justiciable?
I would hold that the matter is justiciable on two grounds. The first can be shortly stated. The Synod of the Diocese of the Murray of the Anglican Church of Australia (the Murray Synod) was incorporated under the Associations Incorporation Act 1956 (SA) and is deemed to be an association incorporated under the Associations Incorporation Act 1985 (SA).[1] Section 23(1) of the Associations Incorporation Act 1984 (SA) provides that the rules of an incorporated association bind the association and all members of the association. The rules therefore have statutory force and should be taken to operate as if they were the terms of a contract between the members of the association and between the members and the association.[2]
[1] Associations Incorporations Act 1985 (SA), s 4(2) (as originally enacted).
[2] Chiropractic and Osteopathic Collegeof SA Inc v Struthers (1981) 97 LSJS 49, 51-59 (King CJ); see also the application of that authority in the subsequent cases discussed by Gray J at [131]-[132].
There is a dispute between Mr Coote and the Murray Synod over the construction and legal effect of certain canons rules and ordinances of the Murray Synod. I accept that a question may arise as to whether every provision of the constituting documents of the Anglican Church and the rules made by the Murray Synod is a rule for the purposes of s 23(1) of the Associations Incorporations Act 1984 (SA). However, rules which regulate the rights and obligations of the parish priests of the Anglican Church in the use of the diocesan property controlled by, or placed at the disposal of, the Murray Diocese (Church property) are the very kind of rules contemplated by s 23 of the Associations Incorporation Act 1985 (SA).[3] So too are rules made by the Murray Synod which regulate the conduct and activities of the parish priests of the Murray Diocese with other members of the parish.
[3] It is immaterial whether the property is the property of the Anglican Church or an associated trust established to promote its purpose.
The second ground arises independently of the Associations Incorporation Act 1985 (SA) and is founded on the Constitution and ordinances of the Anglican Church. It is necessary to consider this ground because, other than the sixth plaintiff, the personal plaintiffs are not members of the Murray Synod and there is a controversy in these proceedings over the extent of their authority under the constitutions of the Anglican Church and the Murray Diocese.
The Anglican Church is an unincorporated association recognised by special Acts of the Australian States made for the purpose of giving legal effect to the Constitution of the Anglican Church (the National Anglican Constitution) and to rules made thereunder “in any way relating to the property of” the Anglican Church. The Murray Synod is a construct of the National Anglican Constitution. The Murray Synod therefore has a dual legal capacity as an organisation established under the Constitution of the Anglican Church and a body incorporated under the Associations Incorporation Act 1985 (SA). However, not all members of the parishes of the Murray Diocese are members of the Murray Synod. Importantly, the Professional Standards Board for the Murray Diocese is not an institution of the Murray Synod, nor are its members, members of the Murray Synod. Critically, if the declarations sought by the plaintiffs are granted, the recommendations made by the Administrator of the Murray Diocese (who stands, for these purposes, in the place of the bishop of the Murray Diocese) would stand. Those recommendations include the revocation of Mr Coote’s licence and authority to hold the office of Rector of the Parish of Happy Valley (Mr Coote’s licence), and a prohibition from holding any office or position in the Murray Diocese. The revocation of Mr Coote’s licence is ultimately a matter for the sixth plaintiff as the Administrator of the Murray Diocese and not as a member of the Murray Synod. As we shall see an order in those terms would affect Mr Coote’s rights to use Church property and his right to a stipend as against persons and entities other than the Murray Synod.
The constituting documents and rules of the Anglican Church, like the rules of other unincorporated religious, and secular, voluntary associations have been described as a “consensual compact”.
In Cameron v Hogan, Rich, Dixon, Evatt and McTiernan JJ explained: [4]
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.
[4] (1934) 51 CLR 358, 371.
In Scandrett v Dowling,[5] the New South Wales Court of Appeal considered the legal effect of the constitution and ordinances of the Anglican Church in the context of the controversy over the ordination of women. Priestley JA traced the history of the use of the words “consensual compact” to a letter written in 1849 by the first treasurer of the Colonial Bishopric’s Fund of the Church of England. In that letter he referred to doubts about the Church of England’s position as an established State church in the colonies and suggested that the Church should organise itself on the basis of a “voluntary consensual compact”. After an extensive historical survey, Priestley JA concluded that “the basis of the consensual compact or contract thus must be a willingness to be bound to it because of shared faith”.[6]
[5] (1992) 27 NSWLR 483, 527.
[6] Ibid, 554.
Priestley JA said of the consensual compact that it was based on “religious, spiritual and mystical ideas, not on common law contract”, but that it had the “same effect as a common law contract when matters of church property became involved with the other matters dealt with by the consensual compact”.[7] Priestley JA explained that in terms of matters of internal church discipline, no recourse to the “consensual compact” is necessary. Either the decision made by the Church’s Tribunal will be followed or the person who is the subject of the Tribunal’s orders will leave the Church. On the other hand, interests in, and rights over, church property cannot be founded on the consensual compact but are, instead, protected by the law of trusts and the law of property.[8]
[7] Ibid, 554.
[8] Ibid, 522.
Priestley JA saw the terms of the National Anglican Constitution and the Anglican Church’s diocesan constitutions as being entirely consistent with the creation of a consensual compact to which members of the church are “bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of State courts of law”.[9] Priestley JA held that when a dispute over the terms of the consensual compact also involved questions relating to the Anglican Church’s property, the courts should decide them only to the extent necessary to enable the legal controversy over that property to be decided.
[9] Ibid, 513.
The analysis of the legal effect of the rules of voluntary associations essayed by Mahoney JA warrants lengthy citation:[10]
[10] Ibid, 503.
Where there is a breach of the rules of a voluntary association, the court will not always intervene to restrain that breach. …
In considering whether such a breach should be restrained by injunction or the subject of a declaration, it will ordinarily be of assistance to consider three matters: whether the rules of the voluntary association were intended to create legally binding rights and obligations between the members; (if they were) whether there has been a breach of rules creating such rights and obligations; and (if there has) whether the rules or the breach are such that it was intended that legal consequences should flow from the breach and (if it was) whether those consequences warrant intervention to restrain the breach.
Whether, considered as a whole, the rules of a particular voluntary association were intended to create such rights and obligations must be determined according to the nature of the association, the terms of the rules, and the general context. In earlier times, there was seen by some to be a tendency to infer that in the case of voluntary associations formed for nonprofit purposes, it was not intended that the rules create such rights and obligations: at least, this was so where property and similar rights were not involved or except in so far as they were involved. This tendency was seen in the judgment of the majority of the High Court (Rich, Dixon, Evatt and McTiernan JJ) in Cameron v Hogan. Their Honours (at 370-371) in dealing with exclusion from a voluntary association, said:
¼ There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalisation it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic 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. …
Mahoney J applied that analysis to the Anglican Church in this way:[11]
There are, in my opinion, substantial reasons why the Court should conclude that, in general, legally binding rights and obligations can arise from the rules of the Anglican Church. The rules of the Church are concerned with matters of importance to its members. They are not concerned merely with a “common end” or a “common interest”. The doctrines, rituals and practices are matters by which its members order their lives and to which they, as required, may dedicate themselves and their property. They are not the result merely of the members of the Church having decided to combine for the effecting and observance of them: they derive from centuries old organisations to which the members have come by adherence. These are matters which, I think, the members would see as capable of and, indeed, as warranting enforcement in formal court procedures in appropriate respects and in appropriate circumstances.
The Constitution is a Schedule to an Act of the Parliament. The rules are of a kind which elsewhere, though in a different context, have been accepted as being legally binding. In England, where the Church of England is an established church, religious rules have given rise to justiciable rights and have been enforced. Those rights have, as I have indicated, been held to arise from the rules of the Church of England as part of the law of the land and they have been enforced as such. In Australia, where the Church is not established, the considerations are not identical. But the relationship of the Anglican Church to the Church of England in England is direct, both in history and because of the terms of the Constitution itself. In my opinion, in general terms, the history and the terms of the rules of the Anglican Church suggest that, albeit only as rules of a voluntary association, they are intended as capable of giving rise to legally enforceable rights and obligations.
It has been urged that in determining whether it was intended that the rules create legally enforceable rights and obligations — I put aside at this stage the question whether the rules, if enforceable, will be enforced in the particular respect or the particular circumstances — it is relevant that the rules themselves are vague, that the meaning of them is ambiguous or indefinite, and that the decision as to what they require to be done in a particular case will depend upon standards or judgments of such complexity or vagueness that it is difficult or impossible to give content to or to apply them. These are matters to be taken into account. But the fact that, for example, the doctrines are of such a nature is not determinative. Where rights of property are concerned, courts can and will decide such questions. I have referred to the issues which were the basis of the decisions in Wylde's case and in Free Church of Scotland v Overtoun. The complexity of the issues is not as such a reason warranting the conclusion that the rules were not intended to have legal effect.
[11] Ibid, 505.
Those passages show that it is necessary to carefully consider the terms and the subject matter of the rules in question in the particular controversy brought before a court in order to determine whether it is justiciable. Before doing so in this case, it is convenient to consider the effect of s 3 of the Anglican Church of Australia Constitution Act 1961 (SA) (the ACAC (SA)) on the question of justiciability. It provides:
The several articles and provisions of the Constitution and any canons and rules to be made under or by virtue of or in pursuance thereof are, and as provided in the Constitution shall be, binding on the bishops, clergy and laity being members of the Church of England in Australia in the dioceses of the Church of England in the State of South Australia for all purposes connected with or in any way relating to the property of the said Church within the State.
The National Anglican Constitution as reconstituted was scheduled to the ACAC (SA). The legislative scheduling of the National Anglican Constitution did not legislate its provisions as statutory rules: the legal effect of the rules is sourced in, and limited to that specified by, s 3 of the ACAC (SA). It is a necessary implication of s 3 of the ACAC (SA) that those officers of the Anglican Church who have responsibility for its property may sue or be sued to enforce the provisions of the National Anglican Constitution, and canons and rules made thereunder, in relation to Church property.[12]
[12] Cf. Bonsor v Musicians Union [1956] AC 104.
The operative phrase of s 3 of the ACAC (SA), “all purposes connected with or in any way relating to the property of the said Church”, is not limited to questions of title over Church property or to the express trusts on which the property might be held. The words “relating to” are of wide import. In my view, s 3 of the ACAC (SA) extends to licences, contractual or otherwise,[13] to use church property.
[13] In Melbourne Anglican Trust Corporation v Greentree, Supreme Court of Victoria No 4387 of 1997 (BC9702239) Vincent J held that the right of Mr Greentree, the licensed vicar of a parish, to be accommodated in the vicarage of the parish was contractual, and not proprietary.
I would also treat both the right to appoint a member of the clergy to a position with a salary or benefice, and his or her right to a benefice, as forms of property for the purposes of s 3 of the ACAC (SA). The historical nature of clerical offices held in the Church of England and the Anglican Church of Australia,[14] and in particular to the emoluments attached to those offices, and the obligations of the diocese and its parishes to provide them, support that conclusion.[15]
[14] See Gent v Robin & the Synod of the Church of England, Adelaide [1958] SASR 328, 330-331.
[15] The Parochial Administration Ordinance 2001 of the Murray Synod imposes on the Parish Council the obligation to pay the stipends, travelling and other allowances to the Parish Priest.
On the other hand, I do not accept that the reputation of the Church is in any way the property of the Church within the meaning of that term in s 3 of the ACAC (SA). Reputation is a factor which may affect the goodwill of a trading business, and goodwill may be treated as an intangible asset of the business. However, the plaintiffs do not rely on reputation in that sense.
In Sturt v Bishop of Newcastle,[16] Sackar J found that because proceedings, under the relevantly similar Professional Standards Ordinance applicable in Newcastle in New South Wales, had the capacity to affect the reputations of the members of the clergy under investigation, a dispute about the procedural fairness accorded them in that investigation was justiciable. It is not clear to me how the effect on the personal reputations of members of the clergy makes such a dispute justiciable. Of course if there are underlying property rights or other legally binding agreements conferring a right to a fair hearing, it is not necessary to rely on the effect on personal reputations of the hearing.
[16] [2012] NSWSC 400.
There may be an obligation imposed by the common law on associations and organisations to comply with the rules of the organisation and to accord procedural fairness in investigations which may affect a person’s reputation even if there is no underlying legal right or interest in property.[17] If that is so, the justiciability of the dispute should not depend on whether the persons investigated or the investigators are the plaintiffs. Be that as it may, my conclusion, explained further below, that the provisions of the National Anglican Constitution and rules made thereunder, which govern the rights and obligation inherent in Mr Coote’s licence, have either statutory or contractual force makes it unnecessary to consider this question any further.
[17] See Plenty v Seventh Day Adventist Church (1986) 43 SASR 121 at 139 and Australian Football League v Carlton Football Club [1998] 2 VR 546, 576-587 (Hayne J).
In this case, the powers and authority conferred on Mr Coote by the Anglican Church include licenses relating to the property of the Anglican Church. As rector of the parish of Happy Valley, Mr Coote was given a “Licence and Authority” to perform the office of Parish Priest. The licence and authority to act as Parish Priest includes the right to conduct spiritual ceremonies on the property of the Anglican Church.[18] Further, The Parochial Administration Ordinance 2001 confers on the parish priest a power to appoint persons to assist in the conduct of those ceremonies. Mr Coote’s appointment as Rector therefore gave him rights “connected with” and “related to” Church property within the meaning of s 3 of the ACAC (SA).
[18] See s 69 of The Parochial Administration Ordinance 2001.
It follows that s 3 of the ACAC (SA) gives legal effect to the National Anglican Constitution, the Constitution of the Murray Diocese and the ordinances, canons and rules made thereunder in so far as they govern those aspects of Mr Coote’s licences as a parish priest. Those instruments legally bind Mr Coote on the one hand, and the incumbents of the responsible offices of the Anglican Church on the other in all matters affecting Mr Coote’s licence and authority as Rector of the parish of Happy Valley.
The National Anglican Constitution and the Constitution of the Murray Diocese and the ordinances, canons and rules made thereunder are binding for an additional reason. Mr Coote’s licence carried with it a stipend. The termination of the licence and the consequential loss of the stipend would affect, directly and immediately, Mr Coote’s financial interests and would prejudice his future capacity to practice his chosen vocation for reward. For that reason, I would infer from the act of appointment of Mr Coote as Rector that it was the common intention of Mr Coote and the Bishop, representing the members of the Murray Diocese of the Anglican Church, to bind themselves in law to the terms of the National Anglican Constitution, the Constitution of the Murray Diocese, and the rules deriving authority from them insofar as those rules attached rights, obligations, powers and privileges to Mr Coote’s licence. Equally, adherence to the internal rules of the Anglican Church by its licensed priests is of great importance to the Anglican Church. As the facts of this case illustrate, legal enforcement of the authority of the Anglican Church may be necessary to protect the spiritual and physical well-being of its parishioners. For that reason too, an intention to enter into a legally binding relationship should be found.[19]
[19] In Chiropractic College v Struthers Association (1981) 97 LSJS 49, King CJ observed that it is not a universal rule that members of a voluntary association do not intend to enter into legally binding relationships and that much depends on the nature and objects of the association.
A similar view was reached by Sackar J in Sturt v Bishop of Newcastle.[20] After reviewing the terms of the Professional Standards Order of the Anglican Church applicable in the Diocese of Newcastle in New South Wales, Sackar J concluded:[21]
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 solemnise 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.
Treating the PS Ordinance in this way is, it seems to me, entirely consistent with the decisions of Macqueen v Frackelton, Baker v Gough and Raguz v Sullivan.
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 whose 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).
[20] [2012] NSWSC 400.
[21] Ibid, [142]-[144].
I acknowledge the difficulties in identifying the persons who are the contracting parties of an unincorporated association.[22] In my view, those difficulties are not as great in the case of a closely structured and continuing organisation like the Anglican Church which has clearly identifiable committees and tribunals with a readily ascertainable membership. The members of those bodies, and the ecclesiastical and other officers of the Anglican Church, on taking office, may be taken by that very act, to adopt and become bound by the legal relationships of their predecessors in office.[23] I would hold that the bishop of the diocese and, from time to time, the parish priest are legally bound by the terms and conditions on which the licence was first granted. So too are the incumbents of any office or tribunal which has a power to affect the rights and interests granted by the licence. Furthermore, a breach of the constitutional instruments and canons and other rules of the Anglican Church by those office holders need not be treated as a breach committed by all members of the Anglican Church including the holder of the licence. In any event, an aggrieved parish priest sues on the contractual terms of the licence and not as a mere member.[24]
[22] Carlton Cricket and Football Social Club v Joseph [1970] VR 487.
[23] Ward v Ethertington [1982] Qd R 561, 565-566.
[24] Ward v Ethertington [1982] Qd R 561, 566.
The first issue should be decided in the plaintiff’s favour. The controversy it asks this Court to resolve is justiciable.
2. The Constitution of the Anglican Church
I turn to the second issue. Mr Coote contends that the Professional Standards Ordinance 2007 is invalid because it is inconsistent with the National Anglican Constitution’s delineation between the powers of the General Synod and the diocesan synods of the Anglican Church to make rules, ordinances and canons, and the adjudicative powers of the tribunals established by it to hear charges of breach of discipline by members of the clergy.
In the table below I summarise the structure of the National Anglican Constitution:
PART I
Chapter I
cl 1-3Fundamental Declarations
Declaration of the Anglican Church as part of the One Holy Catholic and Apostolic Church of Christ and the declaration of the Old and New Testaments as the ultimate rule and standard of faith.
Chapter II
cl 4-6Ruling Principles Adoption of the doctrine and principles of the Church of England embodied in the Book of Common Prayer.
Declaration that the Church has plenary authority to make rules for the order and good government of the Church by its several Synods and Tribunals in accordance with the Constitution.
PART II
Chapter II
cl 7-14The Bishops Continuation of the diocese presided over by a Bishop as the Church’s unit of organisation.
Establishment of a capital Metropolitan (Archbishop) of each province of the Church. (There are three dioceses within the province of South Australia, being the dioceses of Adelaide, the Murray, and Willochra.)
Creation of the office of Primate of the Church.
Provision for separate meetings of the House of Bishops.
Chapter IV
cl 15-25General Synod Constitution of the three Houses of the Establishment of the General Synod constituted by the House of Bishops, House of Clergy, House of Laity and presided over by the Primate.
Chapter V
cl 26-33Powers of the General Synod General Synod may make rules for the order and good government of the Church in respect of ritual, ceremonial and discipline.
Regulation of rule making procedure.[25]
Provision for application of rules of General Synod to dioceses.
Chapter VI
cl 34-35Committees, Boards and Commissions Establishment of standing committee of General Synod.
Chapter VII
cl 36-42The Provinces and Provincial Synods Continuation of the provinces of the Church in Australia and Tasmania and the continuation of the constitutions of those provinces subject to the Constitution.
Chapter VIII
cl 43-52The Dioceses and Diocesan Synods Continuation of the dioceses and their constitution and provision for creation of a new diocese.
Provision for a diocesan synod to make rules for the good government of the Church within the diocese under its continuing constitutions but subject to the Constitution.
Limitation on power of General Synod to alter the Constitution or boundaries of a diocese.
Chapter IX
cl 53-63Tribunals Establishment of a diocesan tribunal in each diocese presided over by the Bishop or a deputy president appointed by him with other elected members having jurisdiction over charges of breaches of faith, rituals, ceremonial or discipline over persons licensed by the Bishop.
Establishment of a provincial tribunal presided over by the Metropolitan with jurisdiction to hear appeals from a diocesan tribunal of the province if an appeal lies and with original jurisdiction over persons licensed by a Bishop of the diocese with respect to charges of breach of faith, ritual, ceremonial or discipline.
Establishment of a Special Tribunal to hear charges against a member of the House of Bishops with an appeal from the Special Tribunal to the Appellate Tribunal.
Establishment of an Appellate Tribunal with jurisdiction to hear appeals from diocesan tribunals on questions of faith, ritual, ceremonial or discipline and from the provincial tribunal in its original jurisdiction.
Chapter X
cl 64The Corporate Trustees Establishment of the Anglican Church of Australia Trust Corporation.
Chapter XI
cl 65-67Alteration of the Constitution Provisions for amending the Constitution.
Chapter XII
cl 68-75Operation of the Constitution Application to every diocese of the Anglican Church in Australia and Tasmania on the enactment of State legislation.
Continuation of every consensual compact and enactment in force in the Anglican Church in its dioceses in Australia and Tasmania with a proviso that nothing in the Constitution authorises a diocesan synod to make an alteration in the ritual or ceremonial of the Anglican Church except in conformity with an alteration made by General Synod.
[25] The Constitution refers to canons, rules and resolutions. From time to time I will refer to the various forms of the rules compendiously as “rules”.
I turn now to elaborate on the particular clauses of the National Anglican Constitution which bear most directly on this question.
Clause 5 of the Ruling Principles found in Chapter II confers on the Church plenary authority and power to make canons, ordinances and rules for the order and good government of the Church and assigns that power to be exercised by the several synods and tribunals in accordance with the provisions of the National Anglican Constitution.
It is necessary to fully set out the clauses of Chapter V which confer rule making powers on the General Synod:
26.Subject to the terms of this Constitution Synod may make canons rules and resolutions relating to the order and good government of this Church including canons in respect of ritual, ceremonial and discipline and make statements as to the faith of this Church and declare its view on any matter affecting this Church or affecting spiritual, moral or social welfare, and may take such steps as may be necessary or expedient in furtherance of union with other Christian communions.
…
30.Subject to the preceding section and unless the canon itself otherwise provides, a canon duly passed by General Synod shall come into force on and from a date appointed by the President, being not later than one calendar month from the date upon which the canon was passed. The canon as on and from the appointed date shall apply to every diocese of this Church and any ordinance of any diocesan synod inconsistent with the canon shall to the extent of the inconsistency have no effect.
Provided that: –
(a) Any canon affecting the ritual, ceremonial or discipline of this Church shall be deemed to affect the order and good government of the Church within a diocese, and shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon.
(b) If General Synod declares that the provisions of any other canon affect the order and good government of the Church within, or the church trust property of a diocese, such canon shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon.
(c) If General Synod should not so declare the synod of diocese or the diocesan council may declare its opinion that the provisions of the said canon affect the order and good government of the Church within or the church trust property of such diocese and notify the President within one month thereafter and then the following provisions shall apply: –
(i)If the said diocesan synod or council declare its opinion as aforesaid within a period of two years from the date of the passing of the said canon and the Standing Committee advises the President that it agrees with the said opinion the canon shall not and shall be deemed not to have come into force in such diocese unless and until it is adopted by ordinance of the diocesan synod;
(ii)If the said diocesan synod or council declare its opinion at any time after the expiration of the said period of two years and the Standing Committee advises the President that it agrees with the said opinion the said canon shall cease to apply to the said diocese as from the date of the said declaration and shall not after such date again come into force in such diocese unless and until it is adopted by ordinance of the diocesan synod;
(iii)If the Standing Committee in either case should not so advise the President he shall refer the question raised by the said opinion to the Appellate Tribunal for its determination and unless the Appellate Tribunal determines the question in the negative the canon shall be deemed not to have come into force in the said diocese in the first case or to have force or effect in the said diocese after the date of the said declaration in the second case until the diocesan synod by ordinance adopts the said canon.
(d) Any canon adopted as aforesaid by a diocesan synod may by ordinance be excluded at a subsequent date.
(e) This section shall not apply and shall be deemed never to have applied to a canon to alter this Constitution.
(footnotes omitted)
The clauses of Chapter VIII which preserve and continue the existence of the dioceses and diocesan synods provide:
47.The constitution of each diocese of the Church of England in Australia and Tasmania shall subject to this Constitution continue as at the date on which this Constitution takes effect, until altered in accordance therewith.
…
51.Subject to this Constitution a diocesan synod may make ordinances for the order and good government of this Church within the diocese, in accordance with the powers in that behalf conferred upon it by the constitution of such diocese.
52.
(1) Notwithstanding any provision to the contrary contained in this Constitution or anything done thereunder General Synod shall not without the assent by ordinance of the diocese concerned alter or permit the alteration of –
(a)The constitution or boundaries of a diocese or any of the powers rights or duties of the synod of a diocese or of any diocesan society council board agency or authority, including the powers rights and duties relating to church trust property and the rights of a diocese with regard to the election of its bishop; …
Turning next to Chapter IX which constitutes the Church’s tribunals, Clause 54 describes the diocesan tribunals as the “courts of the bishop” and provides that they shall be presided over by the bishop and not less than two other members as may be prescribed by ordinance of the synod of the diocese. Diocesan tribunals are given disciplinary authority over persons licensed by the bishop of the diocese, or any other person in holy orders resident in the diocese, in matters of breaches of faith ritual ceremonial or discipline and such other offences as may be specified by any canon, ordinance or rule.
Clause 54(2A) declares that:
A diocesan tribunal shall also have and always be deemed to have had jurisdiction to hear a charge relating to an offence of unchastity, an offence involving sexual misconduct or an offence relating to a conviction for a criminal offence that is punishable by imprisonment for twelve months or upwards in respect of a member of clergy if :–
(a)the act of the member of clergy which gave rise to the charge occurred in the diocese;
(b)the member of clergy was licensed by the bishop of the diocese or was resident in the diocese within two years before the charge was laid; or
(c)the member of clergy is in prison as a convicted person at the time the charge was laid, but within two years before such imprisonment was licensed by the bishop of the diocese or was ordinarily resident therein.
(footnotes omitted)
Clause 54(3) authorises a person appointed by the bishop of a diocese, or any five adult communicant members of the Church resident within the diocese, to bring complaints of misconduct against members of the clergy in the diocesan tribunals.
Clause 54(4) confers a right of appeal in matters involving any question of faith ritual ceremonial or discipline from the determination of a diocesan tribunal to the Appellate Tribunal, provided that the appellant first exercises any right of appeal he or she may have to a provincial tribunal. In the event that an appeal is brought in a provincial tribunal, a further appeal lies to the Appellate Tribunal from the provincial tribunal.
Clause 60 confers on tribunals the powers to make the following orders:
(1) A tribunal shall make such recommendation as it thinks just in the circumstances, but shall not recommend any sentence other than one or more of the following:
(a)deposition from orders;
(b)prohibition from functioning;
(c)removal from office;
(d)rebuke.
Except as otherwise provided herein such recommendation shall be made to the bishop of the diocese concerned.
(footnotes omitted)
It should be noted here that the ultimate power to take disciplinary action remains with the bishop.
Chapter XII preserves the constitution and internal arrangements of the existing dioceses and provinces of the Anglican Church subject to the National Anglican Constitution.
Clause 71 provides:
(1)Every consensual compact and every enactment in force in the Church of England in the dioceses of Australia and Tasmania, or in any province or diocese which has become or becomes a province or diocese to which this Constitution applies shall insofar as they are not inconsistent with this Constitution, continue in force in this Church or in the province or diocese, until altered under this Constitution or under the constitution of the province or diocese.
…
Nothing in this Constitution shall authorise the synod of a diocese or of a province to make any alteration in the ritual or ceremonial of this Church except in conformity with an alteration made by General Synod.
Clause 73 imposes a rule of stare decisis, in accordance with a hierarchy, at the apex of which sits the Appellate Tribunal:
(1)In determining any question as to the faith ritual ceremonial or discipline of this Church any tribunal may take into consideration but shall not be bound to follow its previous decisions on any such questions or any decision of any judicial authority in England on any questions of the faith ritual ceremonial or discipline of the Church of England in England.
(2)A determination of any tribunal which is inconsistent or at variance with any decision of such a judicial authority in England shall have permissive effect only and shall not be obligatory or coercive.
(3)A determination of a provincial tribunal shall be binding upon a diocesan tribunal in the province and a determination of the Appellate Tribunal shall be binding upon the Special Tribunal the provincial tribunal and the diocesan tribunal provided however that the synod of a diocese may by ordinance direct that a diocesan tribunal shall not follow or observe a particular determination of the Appellate or provincial tribunal which has permissive effect only.
Clause 74 is an interpretive provision which defines, relevantly to this appeal, the following provisions:
“Faith” includes the obligation to hold the faith.
“Ritual” includes rights according to the use of this Church, and also the obligation to abide by such use.
Clause 74(9) defines “discipline” as follows:
(a)in Chapters II to VII and X to XII the obligation to adhere to, to observe and to carry out (as appropriate):
(i) the faith, ritual and ceremonial of this Church; and
(ii) the other rules of this Church which impose on the members of the clergy obligations regarding the religious and moral life of this Church; and
(b)in Chapter IX, as regards a person in Holy Orders licensed by the bishop of a diocese or resident in a diocese both:
(i) the obligations in the ordinal undertaken by that person; and
(ii) the ordinances in force in that diocese.
I will turn to the Professional Standards Ordinance 2007 proclaimed by the Murray Synod in greater detail when considering the third issue. For now, it suffices to record that it authorises an enquiry by a committee, called the Professional Standards Committee, into the fitness for office of members of the clergy. The enquiry may culminate, in the event of a finding of unfitness to hold office by the Professional Standards Board, in a recommendation to the Bishop that he revoke the licence of a member of the clergy. The subject matter of the enquiry authorised by the Professional Standards Ordinance 2007 is wide enough to include conduct which might be the subject of a disciplinary charge over which diocesan tribunals are given jurisdiction by the National Anglican Constitution.
Mr Coote contends that the National Anglican Constitution, by implication, precludes the diocesan synods, including the Murray Synod, from making an ordinance which confers authority on a body or tribunal to make findings of fact, orders or recommendations about alleged conduct which could be the subject of a charge or charges brought in the disciplinary jurisdiction of the tribunals established by the National Anglican Constitution. Mr Coote’s contention should be rejected for the following reasons.
Clause 51 of the National Anglican Constitution recognises that the power of diocesan synods to make rules is a wide one. The width of the power reflects the continuation of the constitutions of the dioceses by clause 47 of the National Anglican Constitution. The paramount force given to the rules of the General Synod by clause 30 is significantly constrained by the proviso to that clause. No rule of the General Synod which affects the order and good government of the Church within a diocese can come into force in the diocese without the express or tacit assent of the diocesan synod. It is clear, therefore, that the National Anglican Constitution has not curtailed, by the conferral of the rule making power on the General Synod, the power of the diocesan synods to make rules affecting the order and good government of the Church within the diocese.
That conclusion does not, of course, determine the question whether the National Anglican Constitution itself has denied the General Synod and the diocesan synods the power to constitute other bodies or tribunals with authority to enquire into alleged conduct, over which the tribunals established by Part IX of the National Anglican Constitution would have jurisdiction, if it were to be charged as a breach of discipline. Clause 51 subjects the continuing power of diocesan synods to the provisions of the National Anglican Constitution.
Mr Coote’s objection to a constitutional construction which allows for the diocesan synods to establish other tribunals with authority to investigate the conduct of members of the clergy is based on a conception of clerical rights which are protected by the National Anglican Constitution. The provisions of the constitution of a nation state may be construed by the judicial tribunals it establishes in a way which protects the individual liberties of the citizen. That is so because it is the very purpose of such a constitution to distribute a state’s sovereignty to governmental institutions and to delineate the sovereign’s power as a whole. That approach cannot be applied without modification to the constitutions of all other entities. In particular, in the case of the Anglican Church of Australia it is important to have regard to the following peculiar features of its organisation:
(a) its voluntary membership;
(b) its hierarchical structure;
(c)its nature as a religious organisation which differentiates itself from other religious organisations by references to matters of faith, ritual and ceremony;
(d)the history of its establishment first in the colonies and then in the States of Australia where it was not, as it was in England, an established religion;
(e)the need arising from the abovementioned factors to adopt a governance structure under which the parishes and dioceses of the States could operate as a single Australian church.
The establishment of tribunals with a disciplinary jurisdiction by the constitution of an organisation like that of the Anglican Church should not be equated with the constitutional treatment of the judicial power of a sovereign state. The conferral of judicial power in the constitution of a sovereign state may, by express provision or necessary implication, be exclusive in order to protect the interests of its constituent policies, if it is a federated nation, or to preserve the individual freedoms of its citizens, or both. Even in the case of a sovereign state, the conferral of jurisdiction on particular tribunals does not always exclude legislative power to create new tribunals with overlapping jurisdiction. The constitutional recognition of the Supreme Court of this State does not restrict the power of this State’s Parliament to create other courts from which no appeal lies to the Supreme Court. The express and implied provisions of the Australian Constitution preserving a minimum jurisdiction by way of review for error of law for the Supreme Courts of the States do not detract from the point I am seeking to make. The point is that the constitutions of nations, federated states or associations must be considered on their own terms and in their own context. The construction of constitutional provisions does not commence with an a priori rule or rules.
It is an important feature of the tribunal structure found in Chapter IX of the National Anglican Constitution that it maintains the diocesan tribunals as the “bishop’s court”. The diocesan tribunals make recommendations to the bishop of the diocese in which they are constituted but the Constitution’s provisions are premised on the power of the diocesan bishops to discipline clergy existing independently of the National Anglican Constitution. It is a big step to imply from the provisions of Chapter IX a limitation on bishops’ powers, which the National Anglican Constitution does not confer.
It may be that the powers of bishops to act unilaterally to remove a rector or vicar of a parish have been curtailed over time by the canons of diocesan synods. On the other hand, the position may be that the bishops retain what might be called reserve powers to reject a recommendation or to exercise a power of removal unilaterally. [26] Be that as it may there is no indication that the National Anglican Constitution intends to deny the diocesan synods of the Church authority to adopt such other procedures, and tribunals, for the supervision of the clergy as they see fit. The responsibilities of a bishop in modern times for the supervision of the clergy, and the pastoral care of the parishioners, of the diocese are complex and heavy. A restrictive construction of a church’s constitutional instruments which obstructs the development of procedures necessary to discharge those changing responsibilities should be avoided if it is not a necessary consequence of the constitutional text.
[26] Cf Gent v Robin & the Synod of the Church of England, Adelaide [1958] SASR 328, 350-352.
The Professional Standards Ordinance 2007 is a good example of a desirable additional procedure. As the reasons of Gray J show, there is a clear and long recognised distinction between the nature and purpose of a fitness for office enquiry and disciplinary proceedings, even though both proceedings may result in the exercise of similar powers.
Chapter IX of the National Anglican Constitution and the tribunals it establishes serve an important purpose notwithstanding the width of the power, which I would find the diocesan synods retain, to make further provision for the supervision and control of its clergy. The purpose of the entrenchment in the National Anglican Constitution of a diocesan tribunal with jurisdiction to hear disciplinary charges subject to review by the Appellate Tribunal is to ensure the enforcement of the faith ritual ceremonial and discipline of the Church as a single and uniform whole throughout the Australian dioceses.
I earlier observed that the National Anglican Constitution preserves a right on the part of any five parishioners to bring proceedings in a diocesan tribunal even if the bishop or his representative does not. In that way, the National Anglican Constitution ensures a procedure by which disputed matters of faith and ritual can be brought before the Appellate Tribunal. Importantly, and perhaps because the enforcement of the recommendations of the diocesan tribunals rely on the exercise of power by the diocesan bishop, uniformity in doctrinal matters is ensured by the establishment of the Special Tribunal with jurisdiction over the diocesan bishops themselves. The Constitution then ensures consistency between the decisions of the diocesan tribunals and the Special Tribunal by providing a right of appeal from both to the Appellate Tribunal.
3. Does the Professional Standards Ordinance 2007 authorise the Professional Standard Board’s inquiry into Mr Coote’s fitness?
It is first necessary to consider the authority under which the Professional Standards Ordinance 2007 was made. The Constitution of the Diocese of The Murray of the Anglican Church (the Murray Constitution) was adopted by the Murray Synod on 14 February 1973. Clause 2 provides that the Murray Constitution or any ordinance made under its provisions which is inconsistent with the National Anglican Constitution or any canon made thereunder shall have no effect to the extent of the inconsistency. Clause 3 provides that the Murray Constitution and any ordinance made under its provisions shall be binding on every member of the Church residing in the Murray Diocese to the extent stated. Chapter II of the Murray Constitution deals with the Murray Synod. Clause 5 provides that it is the object of the Murray Synod to provide for the order and good government of the Anglican Church within the boundaries of the Murray Diocese in accordance with the provisions of the National Anglican Constitution. Clause 7(1) of the Murray Constitution provides:
7(1)Except as herein otherwise provided the Synod shall have the following powers:
(a) To make alter and repeal ordinances and resolutions relating to the order and good government of the Anglican Church of Australia within the Diocese and without limiting the generality of the foregoing to make ordinances in respect of:
…
(iii)the constitution, jurisdiction, powers and procedures of the Diocesan Tribunal referred to in the Constitution of the Anglican Church of Australia,
…
(p) To do all such other acts matters or things as shall be or may appear to be incidental or conducive to the order and good government of the Anglican Church of Australia in the Diocese.
It is next necessary to consider the canons dealing with ecclesiastical offences made first by the General Synod and later by the Murray Synod.
In 1962 the General Synod made the Offences Canon. Section 1 of that canon conferred authority, in addition to the authority conferred by clauses 54 and 55 of the National Anglican Constitution, on diocesan tribunals and provincial tribunals, to hear and determine charges of unchastity and conduct disgraceful in a clergyman and of other conduct which was productive, or likely to be productive, of scandal or evil report. The authority to hear those offences extended to all persons licensed by the bishop of the diocese and to persons in Holy Orders resident in the diocese. By an amendment made in 1998, the disgraceful conduct offence was defined as follows:
Conduct, whenever occurring
(a)which would be disgraceful if committed by a member of the clergy, and
(b)which at the time the charge is referred is productive, or if known publicly would be productive, of scandal or evil report.
The 1998 canon provided that it affected the order and good government of the Church within a diocese, and that it would not therefore come into force in a diocese unless and until that diocese accepted the canon by an ordinance of its own.
On 14 February 1973 the Murray Synod made the Ecclesiastical Offences Ordinance.[27] Section 7 of the ordinance provided:
A charge in respect of any matter over which the Diocesan Tribunal has jurisdiction shall only be made within one year from the time when such offence is alleged to have been committed.
Other provisions of the ordinance provided for the examination of the charge by the Bishop and a Board of Enquiry to ensure that it was stated in a form, and supported by a sufficiency of evidence, to warrant bringing it before the Diocesan Tribunal of the Murray.
[27] The Ecclesiastical Offences Ordinance 1973 was amended on 18 August 1981 and 23 August 1982.
Section 34 dealt with sentencing by the Bishop for offences found to be proved. Sections 35 and 36 dealt with appeals to the Appellate Tribunal.
In 2001, the Murray Synod repealed the Ecclesiastical Offences Ordinance 1973 and made the Ecclesiastical Offences Ordinance 2001. The Ecclesiastical Offences Ordinance 2001 contained similar provisions to the Ecclesiastical Offences Ordinance 1973 but no time limit was imposed for bringing a charge before the Diocesan Tribunal.
As noted above, it was a submission of the plaintiffs that the reviewer addressed the wrong issue and, as a consequence, did not in any sense engage in a review of the determination and recommendations of the Professional Standards Board. The reviewer concluded that the Professional Standards Ordinance 2007 did not authorise the Board’s inquiry.
In my view, this submission should be accepted. The reviewer proceeded on the basis that Mr Coote had been charged with an offence in respect of conduct that occurred between 1994-1998 in circumstances where such a charge could only be pursued within 12 months of the alleged conduct. The reviewer then concluded that the Board was engaged in the determination of a charge many years out of time. The reviewer proceeded under a fundamental misapprehension. He conflated the process of a disciplinary proceeding with an inquiry concerning fitness to hold office. The laying of charges in respect of these aspects of the offences proceeds under a different ordinance before a separately constituted tribunal. The Professional Standards Board, acting under the Professional Standards Ordinance, does not have jurisdiction to deal with a charge of an offence or to impose any punishment following a finding of guilt. To my mind, it is clear that the reviewer, as mentioned above, misunderstood the process under which he was engaged. He did not in any way engage in a review of the determination and the recommendations of the Board.
The Determination of the Proceedings before this Court
There is a wide discretion in the Court to grant declarations and injunctive relief having regard to the circumstances arising in the particular case.
Section 31 of the Supreme Court Act 1935 (SA) is the statutory source of the Court’s jurisdiction to grant declaratory relief. That section provides:
No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not.
In JN Taylor Holdings Ltd (In Liq) v Bond, King CJ observed:[60]
[60] JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432, 435-7.
Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction: Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192, per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Co of New York v Hannay and Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex (supra) at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving "a question of defining the rights of two parties". As was pointed out, however, by Street CJ in Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made "at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years". By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear "that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs" [emphasis mine]. In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57):
The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to ...
The other member of the court, Hutley JA, considered that there are limits upon the power to make declarations. The limits which he articulated went no further than that a declaration must "be confined to those matters which have a real legal context, and to the determination of which the Court's procedure is apt" (at 61) and that it must not be a declaration as to a purely abstract or theoretical question (at 62-63).
I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court's power to grant such relief is "only limited by its own discretion" (Hanson v Radcliffe (supra) at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582. The settled practice of the courts may indicate the manner in which the discretion will be exercised in given circumstances. In Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) (supra) the Privy Council made that point (at 1155):
When considering an action claiming relief in the form of discretionary remedies only it is thus important to distinguish between the jurisdiction of the court to entertain the action at all, ie, to embark upon the inquiry whether facts exist which would entitle the court to grant the relief claimed, and a settled practice of the court to exercise its discretion by withholding the relief if the facts found to exist disclose a particular kind of factual situation. The application of a discretion to refuse relief even though this may be pursuant to a settled practice is an exercise of jurisdiction, not a denial of it.
The proposition that there is no limit to the jurisdiction of the court to grant declaratory relief would be an incomplete and misleading statement of the true position unless there be added the further proposition that there are circumstances which are so contra-indicative to the exercise of the discretion in favour of the grant of declaratory relief that the existence of those circumstances would lead almost inevitably to the exercise of the discretion against the making of a declaration. Examples of such decisively contra-indicative circumstances can be found in the cases. A declaration will not be made except in matters "which have a real legal context, and to the determination of which the Court's procedure is apt": Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra) per Hutley JA at 61. There must be some person who has a true interest in opposing the declaration. The question raised must not be purely theoretical. There must not only be a party with a true interest in opposing the declaration, but the plaintiff must have a real interest in having the question determined: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, per Lord Dunedin at 448. That interest may exist although the apprehended impact on the plaintiff may be no more than a future possibility: Hordern-Richmond Ltd v Duncan [1947] 1 KB 545. If, however, the determination of the question could not affect the plaintiff's legal rights or commercial or personal interests now or in the future, that is to say would "produce no foreseeable consequences for the parties" (Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at 188, per Mason J), see generally Ainsworth v Criminal Justice Commission (supra) at 581-582, the declaration would almost certainly be refused.
These observations guide the Court in the exercise of its discretionary powers to grant relief in these proceedings.
Even if Mr Coote was immune from any charge before the diocesan tribunal in respect of his admitted misconduct, the Board was entitled to inquire into the conduct of Mr Coote. “Examinable conduct” is defined in the 2007 Ordinance to mean “conduct wherever or whenever occurring ... which, if established, might call into question … the fitness of a Church worker”. There are certain matters the Board may not inquire into, namely, conduct that has already been the subject of any formal investigation or inquiry, or any alleged breach of faith, ritual or ceremonial of the Anglican Church. However, conduct which can no longer be the subject of a charge before the diocesan tribunal has not been excluded.
[suppressed]
The misapprehension by the reviewer is a serious and material misapprehension. The reviewer has, in substance, avoided his task as a reviewer. He has not dealt with the merits of the matter. He has not addressed the substance of the determinations or recommendations of the Board. These were the very matters that should have been addressed. The reviewer has failed to recognise the difference between disciplinary proceedings for offences involving the laying of charges, a consideration of guilt and, where appropriate, the imposition of punishment, and the process of an inquiry into the fitness to hold an office as a member of clergy. These are not matters of mere procedure. They are so material that it may be concluded that the reviewer failed to conduct a review at all.
In my view, these circumstances justify the granting of relief. A declaration should be made that the Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 had jurisdiction under Part 8 of that Ordinance to determine the reference made on 28 February 2008 by the Professional Standards Committee appointed under Part 4 of the Ordinance.
I would hear the parties as to the final terms of the orders to be made.
PEEK J: I agree with the making of orders in the terms proposed by the Chief Justice and with his reasons.
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