Harrington v Coote (No 2)

[2012] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

HARRINGTON & ORS v COOTE & ANOR (No 2)

[2012] SASC 206

Reasons for Decision of The Honourable Justice Gray

8 November 2012

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

Application for referral of proceedings to the Full Court - where the plaintiffs seek a declaration from the Court that the Professional Standards Board of the Diocese of the Murray of the Anglican Church of Australia had jurisdiction to determine a reference made by the Professional Standards Committee - where, in the alternative, the plaintiffs seek a declaration that a decision of the reviewer, the second defendant, that the Professional Standards Ordinance does not authorise an inquiry into the conduct of the first defendant in 1994-1998 is invalid - where the plaintiffs also seek an injunction restraining the reviewer from making any determination or order under specified sections of the Professional Standards Ordinance - whether the proceedings should be referred to the Full Court for hearing and determination.

Held: Application granted - the proceedings referred to the Full Court for hearing and determination.

Supreme Court Act 1935 (SA) s 17, s 31, s 48 and s 49; Supreme Court Civil Rules 2006 (SA) r 16, r 17 and r 211, referred to.

HARRINGTON & ORS v COOTE & ANOR (No 2)
[2012] SASC 206

Civil

GRAY J.

1. In the within proceedings, the first five plaintiffs are members of the Professional Standards Committee for the Anglican Diocese of The Murray.  The sixth plaintiff is the administrator of the Diocese of The Murray of the Anglican Church of Australia and the seventh plaintiff is the Synod of the Diocese of The Murray of the Anglican Church of Australia.

2. The plaintiffs seek a declaration from the Court that the Professional Standards Board of the Diocese of the Murray of the Anglican Church of Australia had jurisdiction to determine a reference made to the Professional Standards Board by the Professional Standards Committee.  In the alternative, a declaration is sought that a decision of the second defendant and the reviewer, Neville Morcombe QC, that the Professional Standards Ordinance 2007 does not authorise an inquiry into the conduct of the first defendant, Peter John Coote, in 1994-1998 is invalid.  Finally, an injunction is sought restraining Mr Morcombe QC from making any determination or order under specified sections of the Professional Standards Ordinance.

3. Mr Coote sought an order that these proceedings be referred to the Full Court for hearing and determination.  The plaintiffs generally supported the application and the intervener, Phillip John Aspinall, did not wish to be heard on the application.  On 11 October 2012, I made an order that the proceedings be referred and gave further directions to enable the hearing to take place during the November sittings of the Full Court.  These are my reasons for making that order.

4. Section 48 of the Supreme Court Act 1935 (SA) provides:

   (1)Subject to any express enactment, and to the rules of court, the jurisdiction vested in, or exercisable by the court, shall be exercisable either by the Full Court or by a single judge sitting in court.

   (2)However—

   (a)the Full Court shall hear and determine—

   (i)all applications for new trials;

   (ii)all appeals from a single judge whether sitting in court or chambers;

   (iii)all rules and orders to show cause returnable before the Full Court;

   (iv)all questions of law referred to or reserved for the consideration of, or directed to be argued before the Full Court;

   (v)all trials at bar;

   (vi)all causes and matters which are required by the rules of court, or by the express provision of any other Act, to be heard or determined by the Full Court;

   (b)     the jurisdiction of the court may be exercised by a judge in chambers in all such causes or matters, and in all such proceedings in any cause or matter, as are authorised by statute or by the rules or practice of the court;

   (c)     the jurisdiction of the court may be exercised by a master to the extent authorised by this Act or any other Act, or by rules of court made under this Act or any other Act.

   This provision does not confer a jurisdiction on the Court, but identifies the manner in which the Court may be constituted when exercising jurisdiction otherwise vested in or exercisable by it.

5. Relevantly, the jurisdiction of the Supreme Court includes the jurisdiction of the High Court of Chancery, both as a common law court and as a court of equity,[1] and a statutory power to grant declarations.[2]  There would appear to be nothing in the Supreme Court Act that would prevent the Full Court exercising the Court’s jurisdiction to hear and determine the present action.

   [1]    Supreme Court Act 1935 (SA) section 17(2)(a)(i).

   [2]    Supreme Court Act 1935 (SA) section 31.

6. Apart from rule 16 of the Supreme Court Civil Rules 2006 (SA), which enables a Master to refer a matter to a single Judge or to the Full Court, no mechanism for determining which actions should be heard by a Full Court apart from section 48 is expressly provided for in the Supreme Court Act or the Supreme Court Rules.[3]  The assignment of a particular action for hearing by a single judge or the Full Court is left to the internal organisation of the Court. There is no reason why, in an appropriate case, a judge should not direct that a particular action be determined by the Full Court.

   [3]    See also, rule 17 of the Supreme Court Civil Rules 2006 (SA) which provides:

   (1)An appeal lies, as of right, from a final judgment of a Master to the Full Court.

   “exceptions” – appeals from orders:

   (a) made under the Real Property Act 1886;

   (b)     made under Rule 32;

   (c)     in respect of which all parties consent to proceeding under sub-rule (2).

   (2)Subject to Rule 288(1)(b) an appeal lies, as of right, from any other judgment of a Master to a single Judge of the Court.

7. There also appears to be no reason, from the terms of section 48 of the Supreme Court Act, why the Full Court could not, if it considered it appropriate to do so, determine part only of a action and direct that the remainder of the action be determined by a single judge consistently with any reasons given by the Full Court.  The Supreme Court Civil Rules recognise that the Court may make orders for the separate determination of a particular issue in a proceeding.[4] Section 48 should not be read in such a way as to deny the Court the flexibility to arrange its business so that some issues should be decided by the Full Court while others be decided by a single Judge or Master.

   [4]    Supreme Court Civil Rules 2006 (SA) rule 211.

8. Section 49 of the Supreme Court Act provides for the reservation of a question of law to the Full Court. This is narrower than the precursor provision which empowered a judge to reserve “any case or any point in a case for the consideration of the Full Court” and to “direct any case or point in a case to be argued before the Full Court”. Section 48, however, clearly authorises the Court, constituted as a Full Court, to exercise any of the jurisdiction conferred on the Court. The Court itself should determine whether that is to happen in any particular case and an appropriate way in which that can be done is by direction of a single Judge – noting that the power to refer a matter to the Full Court is one which is expressly recognised in the rules as exercisable by a Master.[5]

   [5]    Supreme Court Civil Rules 2006 (SA) rule 16.

9. In the present proceeding, all the relevant facts and all the arguably relevant facts that are sought to be relied upon by the parties are agreed.  The action is one that is appropriate for hearing by the Full Court.

   Conclusion

10. I referred the proceedings to the Full Court for hearing and determination.