Harrington v Coote (No 2)

[2014] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

HARRINGTON & ORS v COOTE & ANOR (No 2)

[2014] SASCFC 39

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)

10 April 2014

CHURCHES AND RELIGIOUS ASSOCIATIONS - CONSTITUTION, MANAGEMENT AND POWERS - JURISDICTION OF COURT - GENERALLY

PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL

The Full Court delivered its reasons for judgment in this matter on 23 December 2013 finding for the plaintiffs on the substantive issues.  In those reasons the Court indicated that an order in terms of those sought by the plaintiffs in paragraph 37(a) of the plaintiffs Points of Claim would be made subject to any submissions by the parties.  The Court invited submissions on the final orders and now delivers its reasons.

Supreme Court Act 1935 (SA) s 131, referred to.
Re JN Taylor Holdings Ltd (In Liq) (2007) 249 LSJS 80, considered.

HARRINGTON & ORS v COOTE & ANOR (No 2)
[2014] SASCFC 39

Full Court:  Kourakis CJ, Gray and Peek JJ

1. KOURAKIS CJ:     On 23 December 2013 this Court delivered its reasons for judgment in this matter finding for the plaintiffs on the substantive issues between the parties (the primary judgment).

2. In my reasons I indicated that I would make an order in terms of those sought by the plaintiffs in paragraph 37(a) of their points of Claim subject to any submission the parties might make. 

3. Paragraph 37(a) of the plaintiff’s claim sought the following order:

   37In the premises the First to Sixth Seventh Plaintiffs are entitled, or alternatively the Seventh Plaintiff is entitled, to the following relief:

   (a)     a declaration that the Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 (The Murray) of the Diocese of The Murray of the Anglican Church of Australia 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.

4. On the delivery of the judgment the parties were given permission to file written submissions on the formal orders and on the question of costs.

5. In response the plaintiffs filed draft minutes of order as follows:

   1      John Frank Ford be substituted for Richard Seabrook as the sixth plaintiff.

   2A declaration that the decision of the second defendant published on 18 April 2012, that the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia properly construed does not authorise an inquiry into the conduct of the first defendant between approximately 1995 and 1998, is invalid.

   3A declaration that the Professional Standards Ordinance 2007 is a valid legislative enactment of the seventh plaintiff and is not inconsistent with Chapter IX of the Constitution of the Anglican Church of Australia.

   4A declaration that the Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia 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.

   5A declaration that the Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia did not exceed its jurisdiction in evaluating the first defendant’s conduct against the Code of Conduct entitled “Faithfulness in Service” which was adopted by the seventh plaintiff on 28 May 2007 and that the first defendant was afforded procedural fairness by the Professional Standards Board notwithstanding the failure to bring the Code of Conduct itself to the attention of the first defendant.

   6[Not pressed by the plaintiffs in their final submissions]

   7[Not pressed by the plaintiffs in their final submissions]

   8The order made by Gray J on 11 October 2012 sealing and prohibiting inspection of the documents to be annexed to the filed Statement of Agreed Facts (marked respectively Tabs 69, 72, 73 and 74) is discharged.

   9The documents annexed to the filed Statement of Agreed Facts and marked Tab 73 (‘Redacted Complaint and Particulars’) and Tab 74 (‘Exhibit A2 – Statement of Facts, tendered to the Professional Standards Board’) are to remain sealed up on the court file and not to be available for inspection except upon order of a Judge, subject to the following qualification, namely, that the sixth plaintiff or his successor or a person on behalf of the sixth plaintiff or his successor, may disclose these documents or their contents to a Bishop of the Anglican Church of Australia or a person on his or her behalf, or to a prospective employer of the first defendant, in circumstances where the sixth plaintiff or his successor is informed that the first defendant has applied for a licence from a Bishop of the Anglican Church or Australia or has sought any employment or appointment to any office or position, whether paid or unpaid, involving pastoral or other responsibility for other persons.

   10No order as to costs.

6. Even though the defendant had disputed the Board’s jurisdiction at trial, in light of the Court’s reasons, the defendant did not oppose the making of an order in terms of paragraph 4.  That order should be made. 

7. The parties were agreed as to the order for costs in paragraph 10.  The order proposed in paragraph 10 should also be made.

8. The defendant did not oppose the order sought in paragraph 2 if the words “is invalid” were deleted and replaced with the words “is of no legally binding effect”.  The words proposed to be substituted by the defendant accord with my reasons in paragraph [80] of the primary judgment.  An order in terms of paragraph 2 with the modification proposed by the defendant should be made. 

9. John Frank Ford was installed as Bishop of the Murray on 6 December 2013 and the plaintiff Richard Seabrook’s office as administrator of the Diocese came to an end.  It is appropriate to substitute John Frank Ford for Richard Seabrook because the former, as Bishop of the Diocese of the Murray, should have the benefit of this Court’s adjudication should any future controversy over the subject matter of the declarations come to be litigated.  An order in terms of paragraph 1 should be made.

10. The width of the declaration sought in paragraph 3 travels beyond the particular grounds on which the Professional Standards Ordinance 2007 of the Murray Diocese was impugned.  An abstract declaration of validity should not be made.  The rejection of the particular grounds on which the defendants challenged the Ordinance has resulted in the declarations made in paragraphs 2 and 4.  No further declaration is necessary.

11. At trial the defendant resisted the declaration sought in paragraph 4 on the ground that, inter alia, that the Board had failed to accord him procedural fairness.  I explained in [91] of my reasons in the primary judgment why it was desirable that this Court determine the challenge to the validity of Professional Standards Board’s decision on that ground.  It is appropriate that the parties formally be bound by the decision of this Court on that issue.  The declaration sought in paragraph 5 should be made.

12. The documents referred to in proposed orders 8 and 9 contain details of the relationship which developed between the defendant and the parishioner, Ms [name omitted]. The orders made by Gray J simply regulate the access of the public to the material which has been filed in court. Section 131 of the Supreme Court Act 1935 (SA) gives members of the public a right to inspect any documentary material admitted into evidence in any proceedings. However, the permission of the Court is required with respect to any such evidence which has been suppressed from publication. The placing of documentary material in sealed envelopes is a form of suppression order.[1]

    [1]    Re JN Taylor Holdings Ltd (In Liq) (2007) 249 LSJS 80.

13. The orders made by Gray J do not prevent the Church from communicating the information contained in the sealed document to interested members of the Church for the purposes of the proper administration of Church business consistent with those of the Church’s internal rules and ordinances which are legally binding.  Obviously enough the Church must also act consistently with the general law principles which protect confidential communications.  However, they are not matters with which this Court need be concerned in this action.  There is no reason to make the orders sought in paragraphs 8 and 9 and they should not be made.

14. The orders made by Gray J derogate, but for good reason, from the open court principle.  In my view, the consideration that victims of criminal or improper sexual behaviour should not to be subjected to embarrassing publications, of the details of the offending against them, should be given substantial weight.  However, that interest must give way to the obligation of the Court to publish adequate reasons for its judgments.   In this case the suppression of [102], [103], [108], [110], [112], [113] and [180] of the reasons of Gray J will not detract from the adequacy of the reasons as a whole. 

    Orders

15. I would order as follows. 

    THE COURT DECLARES that:

    1.The decision of the second defendant published on 18 April 2012, that the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia properly construed does not authorise an inquiry into the conduct of the first defendant between approximately 1995 and 1998, is of no legally binding effect.

    2.The Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia 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.

    3.The Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia did not exceed its jurisdiction in evaluating the first defendant’s conduct against the Code of Conduct entitled “Faithfulness in Service” which was adopted by the seventh plaintiff on 28 May 2007 and that the first defendant was afforded procedural fairness by the Professional Standards Board notwithstanding the failure to bring the Code of Conduct itself to the attention of the first defendant.

    AND THE COURT ORDERS that:

    1.John Frank Ford be substituted for Richard Seabrook as the sixth plaintiff.

    2.Each of [102], [103], [108], [110], [112], [113] and [180] is to be excluded from any version of the judgment of the Full Court for publication to the general public.

    3.No order as to costs.

    4.Liberty to apply to discharge or vary these orders.

    GRAY J.

16. Having regard to my reasons delivered on 23 December 2013 and to the subsequent written submissions of the parties, I would make the following orders and declarations: 

    1.John Frank Ford be substituted for Richard Seabrook as the sixth plaintiff.

    2.The decision of the second defendant published on 18 April 2012, that the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia properly construed does not authorise an inquiry into the conduct of the first defendant between approximately 1995 and 1998, is of no legally binding effect.

    3.The Professional Standards Ordinance 2007 is a valid legislative enactment of the seventh plaintiff and is not inconsistent with Chapter IX of the Constitution of the Anglican Church of Australia.

    4.The Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia 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.

    5.The Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia did not exceed its jurisdiction in evaluating the first defendant’s conduct against the Code of Conduct entitled “Faithfulness in Service” which was adopted by the seventh plaintiff on 28 May 2007 and that the first defendant was afforded procedural fairness by the Professional Standards Board notwithstanding the failure to bring the Code of Conduct itself to the attention of the first defendant.

    6.Each of the following paragraphs of my reasons, namely, [102], [103], [108], [110], [112], [113] and [180], be excluded from any version of the judgment of the Full Court for publication to the general public.

    7.No order as to costs.

    8.Liberty to apply.

17. PEEK J:  I agree with the orders proposed by the Chief Justice and with his reasons.