Harrington v Coote - [2012] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HARRINGTON & ORS v COOTE & ANOR
[2012] SASC 205
Reasons for Decision of The Honourable Justice Gray
8 November 2012
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - OTHER MATTERS
Application by the Archbishop of Brisbane to intervene in proceedings where the plaintiffs seek, inter alia, declaratory relief concerning the jurisdiction of the Professional Standards Board and the operation of the Professional Standards Ordinance 2007 applicable to the Diocese of the Murray – whether the Archbishop of Brisbane should be granted leave to intervene.
Held: Application granted – the Archbishop of Brisbane joined as an intervener.
Supreme Court Civil Rules 2006 (SA) r 89, referred to.
Jeavons v Chapman (2008) 257 LSJS 463; Roadshow Films Pty Ltd v iiNet Ltd (2011) 86 ALJR 205; Levy v The State of Victoria (1997) 189 CLR 579; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391; Hocking v Southern Greyhound Racing Club (1993) 61 SASR 213; Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1) (1988) 142 LSJS 121; O'Meara v FWV Stanke Holdings Pty Ltd (2007) 250 LSJS 195, considered.

HARRINGTON & ORS v COOTE & ANOR
[2012] SASC 205
Civil
GRAY J.

This is an application for intervention.
The broad effect of the plaintiffs’ claim in the within proceeding is to seek declaratory relief concerning the jurisdiction of the Professional Standards Board and, more generally, the operation of the Professional Standards Ordinance 2007 applicable to the Diocese of The Murray. This Ordinance is largely mirrored in the Professional Standards regimes of 21 of the 23 Dioceses which make up the Anglican Church of Australia.
On 8 August 2012, Phillip John Aspinall, the Archbishop of Brisbane, sought permission to intervene in this proceeding. The application for intervention was supported by the plaintiffs and initially opposed by the first defendant, Peter John Coote. When the application was listed for hearing Mr Coote indicated that he did not oppose an order for intervention provided that the intervener did not unnecessarily duplicate submissions advanced by the plaintiffs. The intervener informed the Court that he does not propose to lead any evidence in the proceeding.
On 11 October 2012, I made an order referring the within proceeding to the Full Court for hearing. On that occasion, I also ordered that Dr Aspinall be joined as an intervener in the proceeding. As the matter has been referred to the Full Court, I consider it appropriate at this time to provide my reasons for the making of the order for intervention.
The application by Dr Aspinall to intervene was made pursuant to rule 89 of the Supreme Court Civil Rules 2006 (SA) which provides as follows:
(1)The Court may, on application by a person who wants to intervene in an action, permit intervention on conditions determined by the Court.
(2)An application for permission to intervene must be supported by an affidavit stating—
(a) the nature of the applicant's interest in the action (which need not be a legal or equitable interest); and
(b)the applicant's object in seeking permission for intervention; and
(c)the extent of the proposed intervention.
(3)A copy of the application and the supporting affidavit must be served on all parties to the action.
(4)The Court may permit intervention on conditions it considers appropriate.
(5)The Court may, on application or on its own initiative, vary or revoke an order allowing non-party intervention under this rule.
The decision whether to make an order permitting intervention by a non-party is a matter of discretion, to be determined in all of the circumstances of the case.[1]
[1] See O’Meara v FWV Stanke Holdings Pty Ltd (2007) 250 LSJS 195, [7]; Jeavons v Chapman (2008) 257 LSJS 463, [12].
Notwithstanding that there are no specific criteria prescribed in rule 89 as to the circumstances in which an order permitting intervention might be appropriate, in Jeavons v Chapman I set out four matters which are generally relevant to this type of application, namely, whether the intervention is apt to assist the Court, whether it is in the parties’ interest to allow the intervention, whether the intervention will occupy time unnecessarily and whether allowing the intervention will add inappropriately to the costs of the proceeding.[2]
[2] Jeavons v Chapman (2008) 257 LSJS 463, [12].
In addition, when considering whether to make an order permitting intervention by a non-party, the court is required to determine whether there is a proper basis for the non-party interest. Rule 89 specifically provides that the nature of the proposed intervener’s interest “need not be a legal or equitable interest”.[3]
[3] Supreme Court Civil Rules 2006 (SA) rule 89(2)(a).
When there are good grounds to join a person as an additional defendant in the action, this course should be followed rather than joining the person as an intervener.[4] Further, a non-party whose interests are likely to be directly or substantially affected by the outcome of the proceeding should be permitted to intervene, but not merely someone whose interests in the future may be indirectly or contingently affected.[5]
[4] Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1) (1988) 142 LSJS 121, 125.
[5] Roadshow Films Pty Ltd v iiNet Ltd (2011) 86 ALJR 205, 206.
The general principles governing non-party intervention were discussed by Brennan CJ in Levy v The State of Victoria.[6] Intervention may be appropriate in three main situations: where a non-party interest would be affected by a decision in the proceeding; where a non-party interest is likely to be affected by a decision in the proceedings; and where parties to the proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination.
[6] Levy v The State of Victoria (1997) 189 CLR 579, 600-605.
Where intervention is permitted, generally an intervener has the rights and privileges of a party to tender evidence, to participate fully in the argument and to appeal.[7] However, an intervener may assert no interest greater than that of the original parties and cannot raise new issues.[8]
[7] Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396.
[8] Hocking v Southern Greyhound Racing Club (1993) 61 SASR 213, 215-216.
Dr Aspinall was elected Primate in 2005 following the retirement of the then Primate, the Archbishop of Perth, Dr Peter Carnley. Dr Aspinall was elected by a Board of Electors comprising his fellow Diocesan Bishops, twelve elected clergy and twelve elected lay members.
The position of Primate is recognised in the National Constitution of the Anglican Church of Australia. Amongst other things, the Primate convenes and Chairs meetings of the House of Bishops. The Primate is both President and Convenor of the General Synod of the Anglican Church and Chair of the Standing Committee of General Synod which has responsibility for the day to day governance of the General Synod’s business when the Synod itself is not “sitting”. Ancillary to this, the Primate acts as a national spokesperson for the General Synod of the Anglican Church of Australia and provides practical and spiritual leadership to the Bishops and clergy of the 23 Dioceses that make up the Anglican Church of Australia.
Part of Dr Aspinall’s function as Primate, which he seeks to discharge by the application to intervene in these proceedings, is, it is said, to protect the reputation of the Anglican Church of Australia, which reputation may be undermined by any finding that an individual Diocese’s Professional Standards Ordinance was or may be invalid. It was submitted that any such finding could lead to a loss of confidence in the National Church’s response to allegations of abuse within the Church and inevitably bring the reputation of the Anglican Church of Australia into disrepute.
Counsel for Dr Aspinall identified his interest in the following asserted respects:
-the proceedings will require consideration of issues relevant to the validity of the Professional Standards regime, or parts of that regime, adopted by 21 of the 23 Dioceses constituting the Anglican Church of Australia;
-the Professional Standards Ordinance 2007 of the Diocese of The Murray is modelled on a national Professional Standards Ordinance adopted by the General Synod of the Anglican Church of Australia in 2004. That model Ordinance was intended to be adopted and has, with some variations, been adopted in 21 Dioceses with the consequence that Boards now exist in each of these Dioceses;
-Mr Coote contends that the Professional Standards Ordinance 2007 does not, as a matter of construction, authorise an inquiry into his conduct on the basis that the conduct can no longer be the subject of a charge before a Diocesan Tribunal or Board. Mr Coote asserts that the relevant conduct, from the period 1994-1997, can no longer be charged before a Diocesan Tribunal and that, as such, he has acquired an “immunity” from any proceedings before the Board;
-Mr Coote contends that the Professional Standards Ordinance 2007, insofar as it may purport to authorise any inquiry into the conduct of a member of the clergy of the Diocese of The Murray, is inconsistent with the National Constitution and is not, therefore, authorised by the Constitution of the Diocese of The Murray as a valid – that is, legally effective – Ordinance of that Diocese;
-Dr Aspinall wishes to be heard in support of the Anglican Church of Australia’s Professional Standards regime of which the Professional Standards Ordinance 2007 is part, recognising that were any challenge to the validity of any individual Professional Standards Ordinance to succeed including the present challenge to that of the Diocese of The Murray, or should views consistent with this be expressed by this Court, it may have widespread and adverse consequences for the National Church, the Diocese of The Murray and for all of the Dioceses that make up the Anglican Church of Australia, including by provoking further challenges to other Professional Standards Ordinances resulting in public criticism of and a loss of public confidence in the Anglican Church’s processes;
-the proceedings in all probability will require consideration of the proper interpretation of the National Constitution and the relationship between the National Constitution and the Constitutions and Ordinance making powers of individual Dioceses with widespread and long term consequences for the governance of the Anglican Church and its ability to address and deal with Professional Standards and other issues on a national and uniform basis;
-the proceedings in all probability will also require consideration of, as a matter of statutory construction, the validity or otherwise of the Professional Standards Ordinance 2007 having regard to the National Constitution. This may include consideration of whether the National Constitutions and the Constitution of the Diocese of The Murray contain express or implied terms circumscribing the matter in which domestic Tribunals and Boards of the Anglican Church are empowered to hear and conduct disciplinary proceedings;
-Dr Aspinall has an interest in the proper interpretation of the National Constitution and, in particular, insofar as it affects the rights, powers and responsibilities of individual Dioceses to respond to and protect members of the Anglican Church and others who come into contact with “Church workers” from abuse and other forms of improper behaviour.
It was further submitted that the Professional Standards Ordinance 2007 is largely mirrored in 21 of the 23 Dioceses within the Anglican Church of Australia. As a consequence, it was said that any finding of invalidity in regard to this Ordinance inevitably has the potential to expose the National Church to public criticism and individual Dioceses to potentially significant civil claims. It was emphasised that were Mr Coote’s “acquired immunity” point to succeed, there would be a real prospect of other Professional Standards Board decisions being challenged for excess jurisdiction.
It is reasonable to proceed on the basis that the interests of the plaintiffs are not necessarily entirely ad idem with those of Dr Aspinall. His object in intervening is not necessarily to have orders made in the terms proposed by the plaintiffs. His primary objective is to address the Court on the proper interpretation of the National Constitution insofar as Mr Coote alleges an inconsistency between the Professional Standards Ordinance 2007, and similar Ordinances around the country, and Chapter IX of the National Constitution. Dr Aspinall has a relevant interest to assist the Court with the National Church’s submissions on the interpretation of the National Constitution and the relationship between that Constitution and the Ordinance making powers of individual Dioceses, as well as the interpretation of a Professional Standards Ordinance which is modelled on that adopted by General Synod in 2004 and which is in operation in other Dioceses.
The involvement of Dr Aspinall in the proceedings is not anticipated to increase the length of any hearing on the subject matter or inappropriately add to the costs of the proceedings. Dr Aspinall’s does not propose to raise any new evidence of fact or introduce any issue for determination which is not already identified by the parties. The substance of the points which Dr Aspinall seeks to make will be made in submissions.
In my view, it was appropriate to grant leave to Dr Aspinall to intervene. In the circumstances, I ordered that:
1. … Dr Phillip John Aspinall (“Intervener”) be granted leave to intervene in these proceedings to make submissions to this Honourable Court in relation to:
1.1the operation, construction and interpretation of the National Constitution (and, in particular, Chapter IX);
1.2the relationship between Chapter IX of the National Constitution and the Ordinance making powers of individual Dioceses;
1.3the jurisdiction of the Professional Standards Board of the Diocese of The Murray to determine questions referred to it in relation to the conduct of the First Defendant in the period of 1994 to 1998; and
1.4the constitutional validity of the Professional Standards Ordinance 2007 of the Diocese of The Murray having regard to the operation of Chapter IX of the National Constitution.
2. The written submissions of the Intervener are to:
2.1avoid, as far as possible, any unnecessary duplication with those of the Plaintiffs;
2.2in any event, be limited to six pages.