Howie v Lawrence
[2013] VSC 616
•1 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 05429
IN THE MATTER of an application under the Administrative Law Act 1978 (Vic)
BETWEEN:
| KENNETH ROSS HOWIE | Plaintiff |
| – and – | |
| MARK LAWRENCE and Others (who constitute The Standing Committee of the Synod of Victoria and Tasmania of the Uniting Church In Australia) | Defendants |
JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2013 | |
DATE OF JUDGMENT: | 1 November 2013 | |
CASE MAY BE CITED AS: | Howie v Lawrence | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 616 | |
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ADMINISTRATIVE LAW ― Natural justice ― “Tribunal” ― Synod of the Uniting Church of Australia ― Statutory recognition of Church and its various governing Councils ― Decision by Synod to sell premises of active congregational church ― Congregation not given an opportunity to be heard before the decision was made ― Amenability to judicial review ― Order nisi for review granted ― Administrative Law Act 1978
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendants | (No appearance – ex parte application) |
HIS HONOUR:
On 31 October 2013, the Court granted an order nisi for review under the Administrative Law Act requiring the defendants to show cause why a decision made by them as a Standing Committee of a Church Synod should not be reviewed by this Court. They decided to sell the St Stephen’s Uniting Church in Williamstown. The plaintiff is an active member of that congregation and seeks to impeach the decision on the ground that the defendants made that momentous decision without any prior notice to the St Stephens congregation and without affording them any opportunity to be heard on it beforehand. I stated my reasons in Court, untranscribed. What follows is a rushed recapitulation of my reasons.
The applicant, Kenneth Ross Howie, is a member of the Uniting Church in Australia, and has been since its inception in 1977. He is part of the Congregation of St Stephen’s Uniting Church in Williamstown. The church property there comprises the church worship centre, a meeting room, vestry and office as part of the church building, a hall, a carpark, tennis courts, a shed, a manse and some vacant land. The congregation comprises 119 members and adherents. Mr Howie describes it as an active and viable congregation. He explains:
A wide range of Church and community activities take place each week on the property. It is a spiritual home of the Congregation, which gathers each Sunday for worship, and meets regularly in fellowship groups and other activities. Many members of the Congregation have long historical associations with the Church. Community groups which base their activities on the property include play groups for children, a lunch program for people in need, a crisis intervention group, Williamstown Emergency Relief, a self-defence school, a breastfeeding group, a tai chi school, a number of singing, music and dancing groups.
Over many years the Congregation and Church Council have faithfully and diligently cared for the upkeep and maintenance of the property, made decisions about the use of the land and the buildings, and managed all financial affairs and funds relating to the property, including raising and contributing substantial sums of money for the care and improvement of the property.
The church is governed by a series of interrelated councils. One part of the government and administration of the church is the Synod. Under the constitution of the Uniting Church, the Synod has the general oversight, direction and administration of the church’s worship, witness and service within its bounds. It exercises executive, administrative, pastoral and disciplinary functions over the Presbyteries within its bounds. From among its members, the Synod has appointed a Standing Committee which is empowered under the Constitution to act on behalf of the Synod between meetings in respect of certain responsibilities of the Synod.
Within each Synod, there is created a body corporate known as the Synod Property Trust in which the legal title to all property is vested.
There is a Synod of Victoria and Tasmania. In May 2013, the Synod resolved, amongst other things to –
(a)consult with the presbyteries, congregations, agencies and other Uniting Church bodies across the Synod to release reserves, businesses, under utilised properties etc in order to contribute to the reduction of the church’s debt burden; and
(b)to declare that, as a matter of urgency, special circumstances existed to allow the Standing Committee of the Synod to initiate the sale of real estate held within the Synod in order to extinguish the Acacia College debt of $36.6 million by 31 December 2014 and to raise $17.2 million for other purposes including to provide liquidity.
The Synod also resolved that decisions relating to the sale of land would be made after discussion with presbytery standing committees, congregations, faith communities and stakeholders about issues including discernment of mission or directions.
On 7 October 2013 the Synod Standing Committee met to consider property divestments arising from the resolutions made in May 2013. By letter dated 9 October 2013, the general secretary of the Standing Committee announced that a list of properties had been approved for divestment, and that included the church and hall and the dwelling at St Stephen’s in Williamstown.
Mr Howie complains that the decision was made without any notice, consultation or discussion with the congregation of St Stephen’s Uniting Church or the church council. No notice was given to them that it was being considered for sale. No notice was given about the grounds for the decision to sell their church and no revelation was given about the evidence upon which the decision to sell the church and property was made. The congregation were not given an opportunity to be heard before the decision was made. According to the affidavit evidence, subsequent communications stated that the sale process would commence on Monday 14 October and that the congregation had up to three months to vacate the property. Mr Howie says that after the congregation was told, “the response was shock, disbelief, betrayal, outrage, profound sorrow”. His church council resolved not to accept what they saw as the injustice of the decision.
Mr Howie brings an application for review to this Court under the Administrative Law Act 1978 as a member of the Congregation. (I have raised the question whether this is a representative action under Order 18 on behalf of the persons comprising the Congregation, but Mr Howie is content to personally take responsibility as plaintiff) I need not refer to the provisions of that well known Act in detail. There is no doubt he is a “person affected”. He is a person “whose interest…is…affected…to a substantial degree by a decision which has been made…“. I also think there is enough to say, at least for present purposes, that a “decision” has been made here; that is, “a decision operating in law to determine a question affecting the rights of any person or to…terminate…or alter a privilege…“. The cases in this field, of which there are many, tend to concern rights in the sense of licences to conduct trades or activities, or some other opportunity. But there is no confinement to what is a right or privilege. I am willing to proceed on the basis that it is enough for the plaintiff and his congregation to say they will be deprived of the real value and privilege to worship, engage in religious observance and commune in fellowship as part of a Church in which they are members. The Congregation is the Church.
What to my mind exercises the greatest consideration is the definition of tribunal. It is defined to mean –
A body of persons … who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.
The principal purpose of the Administrative Law Act was to eliminate the complexities which attend at applications to the court for the grant of prerogative writs and similar remedies directed to tribunals or other bodies charged with the performance of public acts and duties: see Monash University v Berg.[1] It also provides a means of review of the decisions of an extremely wide class of persons and bodies without the necessity of analysing in detail or at all whether those bodies should be categorised as judicial, quasi judicial or administrative: see Keller v Drainage Tribunal.[2] Despite that, nothing in the Act is seen as intended to empower the Supreme Court to grant new remedies under judicial review. Nor does it alter the common law restriction to judicial review to the supervision of “public power”.
[1][1984] VR 383 at 388.
[2][1980] VR 449 at 450-1.
The question is whether prima facie the Standing Committee was required by law to observe one or more of the rules of natural justice.
It is a fundamental rule that a statutory authority having power to affect the rights of a person is bound to hearing before exercising that power. The principle extends not only to the exercise of a statutory discretion which affects the rights of an individual citizen but also to the exercise of a power which may affect what may be described as a “interest or privilege” or which disappoints what has been called a “legitimate expectation”: see FAI Insurances v Winneke.[3] Generally speaking judicial review is confined to statutory decision making. Powers are given under a statute and the question is usually whether those powers have to be exercised in a certain way, such as, by observance of the rules of natural justice. That will be a question of construction of the statute.
[3][1981] 151 CLR 342 at 360 and 376.
On no grounds could it be said that the Uniting Church or the Synod or the Standing Committee is a public body or a statutory authority performing a statutory function. But there is no doubt the church has a statutory origin and has a statutory recognition. Under The Uniting Church in Australia Act 1977 the Congregational Church, the Methodist Church and the Presbyterian Church (identified as the “Uniting Churches”) were empowered to unite in accordance with the Basis of Union, which is a schedule to the Act. Under s 9, the Assembly of the church was empowered to adopt a Constitution for the Church consistent with the Basis of Union. There was also constituted under the Act a corporation under the name of “The Uniting Church in Australia Property Trust (Victoria)” which was given corporate identity and in power to hold trust property in trust for the church and upon any other trust affecting the property.
Under the Basis of Union, the Uniting Church is governed by a series of interrelated councils each of which has its tasks and responsibilities. Part of that organisation includes the Synod, which is a regional council having the responsibility for the general oversight, direction and administration of the church’s worship, witness and service in the region allotted to it, with such powers and authorities as may from time to time be determined by the Assembly (the national body or council). The Constitution of the church establishes the Standing Committee.
Under clause 22 of the Constitution, “the primary expression of the corporate life for the Church shall be the Congregation”. Under clause 50 of the Constitution “the beneficial ownership of all property were the real or person shall be vested in the Church”.
Even though, as a general rule of amenability to judicial review, the courts look to the exercise of “public power” or a body performing a public role somehow acting under the authority of government, bodies can be susceptible to judicial review even though they are not created by government or are not invested with relevant statutory powers. Examples would be regulatory bodies that are recognised by statute or have some sort of statutory linkage or (in age of privatisation) perform some public function with government.
Even though the decision of the Standing Committee was not made in the exercise of statutory power, I think there is sufficient to say (for order nisi purposes) there is a public element or public law consequences especially where the Church has a statutory origin or recognition: see CECA Institute Pty Ltd v Australian Council for Private Education and Training.[4]
[4][2010] 30 VR 555.
I find it hard to think that the church would be described as representing purely private interests. A public element can take many forms, and power can be described as public especially if decisions carry enormous or widespread weight. For present purposes, I think it is sufficient to say that the exercise of the decision making power here is underpinned by statute. The church as an institution originates in statute. The basis of union is a statutory instrument. Although that does not mean that the church is a statutory authority, nevertheless I think there are sufficient, at least for the purposes of an order nisi, to say that the statutory origins of a church clothes it with a statutory quality and that in exercising powers, it is a public quality to the point where it ought be accountable to the norms and values of public law including the requirements of natural justice. That is not to say that religion, however much it is to be encouraged, is the business of government. And it is not to say that judicial review will reach into all powers or activities of the Church and its organs. But the disposition of property and assets stands in a distinct position. Under the Constitution of the Church the beneficial ownership of all property is vested in the Church, and under the Basis of Union it is the Congregation that is the embodiment of the Church, one that recognises the need for agencies for the ordering of its affairs in matters such as administration and finance. The Committee is exercising substantial powers having public consequences.
Section 4(2) of the Act permits me to refuse the application if satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal would impose no substantial injustice upon the applicant. There is no room for refusal on those grounds. It is plain on the evidence that the matter is of great importance to Mr Howie’s congregation and possibly beyond and on no basis could it be said that there would be no substantial injustice.
It was for those reasons, that the Court granted the order nisi for review. I should add, I abstained from making an order to restrain the implementation of the Standing Committee’s decision, as I am empowered power to do under s 6 of the Act. As things stand, the respondents (who had notice of this application) requested a period of 30 days in the event that the order nisi was granted in order that consultations could occur. I think no restraining order should be made on the decision until such time as a sale becomes imminent or the Standing Committee refuses to give an undertaking to abstain from selling pending the determination of the application for review. Moreover, consideration may have to be given to whether the court would impose “security”, that is, something akin to an undertaking of damages, against Mr Howie under s 6. These are matters that ought to wait the development of events.
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