McDermid v Anglican Trusts Corporation for the Diocese of Gippsland and McIntyre
[2012] VCC 1406
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
WORKCOVER DIVISION
Case No. CI-12-00036
| KENNETH McDERMID | Plaintiff |
| v | |
| ANGLICAN TRUSTS CORPORATION FOR THE DIOCESE OF GIPPSLAND | First Defendant |
| and | |
| THE RIGHT REVEREND JOHN McINTYRE | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 August and 14 September 2012 | |
DATE OF RULING: | 20 December 2012 | |
CASE MAY BE CITED AS: | McDermid v Anglican Trusts Corporation for the Diocese of Gippsland & McIntyre | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1406 | |
RULING
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Whether the plaintiff, as an Anglican minister, was a “worker” within the meaning of the Accident Compensation Act 1985 – whether the plaintiff entered and worked under a contract of service – nature and extent of contract of service – appointment to ecclesiastic office – canon and civil law – intention to enter contractual relationship
LEGISLATION CITED – Accident Compensation Act 1985; Church of England Act 1854; Bishop-in-Council Act 1963 (Canon law); Appointments Act 1994 (Canon law)
CASES CITED – Eres v Deer Park Installations Pty Ltd & Steel Mains Pty Ltd (unreported) VSC 5643 of 1981; Ritchie v The Swan Hill District Hospital [1931] VLR 57; Bailey v Victorian Soccer Federation [1976] VR 13; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Elazac Pty Ltd v Shirreff [2011] VSCA 405; The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56; JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938; Sturt & Anor v The Right Reverend, Dr Brian Farran, Bishop of Newcastle & Ors [2012] NSWSC 400; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Diocese of Southwark & Ors v Coker [1998] ICR 140; Davies v Presbyterian Church of Wales [1986] 1 WLR 323; In re National Insurance Act 1911: In re Employment of Church of England Curates [1912] 2 Ch 563; Percy v Board of National Mission of the Church of Scotland [2005] All ER (d) 229 (Dec)
RULING – Plaintiff is a “worker” within the meaning of the Act – plaintiff’s application succeeds against the second defendant.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C D Griffin | Moores Legal |
| For the First Defendant | Mr B R McKenzie | Hall & Wilcox |
| For the Second Defendants | Mr M W Shand QC with Ms R Sotiropoulos | Sullivan Braham Pty Ltd |
HIS HONOUR:
Preliminary
1 On or about 11 September 2009, the plaintiff became licensed as the rector[1] of the Anglican Parish of Yarram (“the parish”) within the diocese of Gippsland (“the diocese”) in Victoria.
[1]The terms ‘rector’ and ‘priest’ appear interchangeable.
2 At all material times, the first defendant (“the trusts corporation”) was a corporation incorporated for the principal purpose of acquiring, holding and administering various real property on behalf of the Anglican Church of Australia (“the Church”), within the diocese and for various other limited purposes.
3 At all material times, the second defendant (“the bishop”) was the Anglican Bishop of Gippsland.
4 The Church[2] is not an incorporated entity. The Church of England Act 1854 provided the basis for constitutional government of the Church in its dioceses in the then province of Victoria.
[2]Until July 1986 known as the Church of England in Australia.
5 The plaintiff alleges he suffered psychological injury in the nature of a Major Depressive Disorder and/or Post-Traumatic Stress Disorder (“the injury”) in the course of his duties as rector of the parish, as a result of being “bullied”. As a consequence of the injury, the plaintiff alleges he has been incapacitated for his duties as rector of the parish since 27 December 2010.
6 The plaintiff lodged a Claim for Compensation seeking weekly payments and medical and like expenses pursuant to the Accident Compensation Act 1985 (“the Act”), alleging he is a “worker” within the meaning of the Act. The defendants deny the plaintiff is a “worker” within the meaning of the Act.
7 On 6 January 2012, the plaintiff commenced a proceeding against the trusts corporation and the bishop, alleging:
· he was employed from 16 September 2009 by the trusts corporation, alternatively, the bishop;
· that employment was pursuant to a contract of employment;
· he was an “employee” within the meaning of the Act;
· he suffered the injury in the course of his employment and has been incapacitated from his employment from 27 December 2010 as a result of the injury.
8 As a result, the Writ seeks a “declaration of liability” and weekly payments pursuant to the Act.[3]
[3]The Statement of Claim was amended by Order of Judge Wischusen made 22 March 2012, and was further amended in the course of this application on 14 September 2012.
9 By his Defence,[4] the bishop denies the plaintiff was employed by him. He denies the plaintiff was a “worker” within the meaning of the Act. He says further:
[4]Defence of the Second Defendant dated 23 April 2012
· Any agreement was not intended to be legally enforceable as a contract but was a “consensual compact of a spiritual nature” between the parties;
· Alternatively, if the agreement was intended to be contractually binding, it was not a contract of employment;
· The agreement was an appointment to office within the Church and was not to a position of employment;
· The agreement was not one to which the plaintiff performed work under the bishop’s direction, instruction or request.
10 This ruling concerns a straightforward preliminary issue. It is whether the plaintiff is a “worker” within the meaning of the Act.
11 Affidavits of the bishop and Brian John Norris (“Norris”), the registrar of the diocese, both sworn 2 August 2012, were tendered into evidence.[5] Both attended and were cross-examined. Viva voce evidence was given by the plaintiff.
[5]Exhibits D2B and D1B
12 On 14 September 2012, in the course of submissions, counsel for the plaintiff, Mr Griffin, did not press the claim that the plaintiff’s employer was the trusts corporation. He conceded if the plaintiff’s claim to be a “worker” within the meaning of the Act was to succeed, the relevant employer was the bishop.
Relevant Background
13 The plaintiff was ordained an Anglican priest in 1984. He had earlier completed a Diploma in Theology. At the time of his ordination, a bishop delivered an “exhortation”, which described, in general terms, the spiritual and religious obligations and duties of an Anglican priest.[6] It is a spiritual “role description”,[7] but does not describe the “day-to-day” activities of the priest.
[6]See Exhibit D2A – Extract from the Anglican Prayer Book containing and exhortation in similar terms. Further, Transcript (“T”) 42
[7]T42, L17
14 One part of the exhortation said:
“Will you obey your bishop and other ministers given authority over you, gladly and willingly following their godly and lawful directions?” –
Response: “I will by the grace of God.”
15 Once ordained, an Anglican priest was dependent upon receiving a licence to minister within a particular diocese from the bishop of that diocese. Employment as a priest was not guaranteed by the Church. The diocese was formed out of the Diocese of Melbourne in 1902. The diocese is not a legal person.
16 According to the affidavit of Norris, sworn 2 August 2012 (“the Norris affidavit”), the bishop administered the diocese with the consent and advice of the Council of the Diocese.[8] In accordance with the Bishop-in-Council Act 1963 (Canon Law),[9] there was constituted a council consisting of various members, both lay and religious which, together with the bishop, was referred to as the “Bishop-in-Council”. According to that Act, the Bishop-in-Council administered the temporal affairs of the Church and could do all or any of the following:
[8]Paragraph 31 of the Norris affidavit
[9]An Act of the Anglican Diocese of Gippsland – Exhibit CB-24 to the Norris affidavit.
“(a)manage and administer all the revenues arising from real and personal property held by any person or corporation in trust for the diocese …;
(b)manage any property and administer any funds raised or received for the purpose of the diocese;
(c)purchase real or personal property for the purposes of the Church or of the diocese;
(d)sell, mortgage, lease or otherwise deal with any real or personal property held by any person or corporation in trust for the diocese … ;
(e)generally to take such action as is necessary or expedient in all matters which may from time to time be referred to it by the bishop or the synod.”
17 The diocese is one of twenty-three dioceses comprised in the Anglican Church of Australia.
18 The bishop was ordained in 2006. Like the plaintiff, he was required to make an exhortation at that time.[10] Generally, the exhortation sets out the spiritual obligations of the bishop. It includes:
“... you are to lead and guard the priests and deacons under your care, and be faithful in choosing and ordaining ministers. … .”
[10]Exhibit 8 to the affidavit of the bishop sworn 2 August 2012 (“the bishop’s affidavit”).
19 There are thirty parishes within the diocese. Each parish has a rector, or priest. Each rector is licensed by the bishop.
20 According to the Appointments Act 1994 (Canon Law), the appointment of a rector is made by the bishop upon advice received from a Clergy Appointments Advisory Board, which comprises seven persons, including the bishop. The bishop is not obliged to accept the nomination of the Board. The bishop may refuse to licence a particular minister as rector of a parish. The bishop has the right to remove a licence.
21 The religious duties of a rector include to preach the word of God, to administer the sacraments, in particular Holy Communion, to perform funerals, weddings and baptisms, and to attend a synod each year within the diocese. Generally, the rector was required to perform a pastoral role in ministering to the spiritual needs of the parishioners[11]. There were a number of churches within the parish which were to be serviced by the rector.
[11]For a full description of the spiritual duties of the rector, see Exhibit D2A, CB 48 – The Exhortation for the Ordination of Priests
The Appointment of the Plaintiff
22 The plaintiff was appointed or licensed as the rector of the parish on 16 September 2009. Up until that time, he had been the rector of a parish in Tasmania. The previous rector of the parish had resigned. The plaintiff made contact with the bishop to discuss the prospect of appointment as rector of the parish. A meeting of the Clergy Appointments Advisory Board was convened on 11 June 2009 and, upon the recommendation of the bishop, it was resolved to nominate the plaintiff as rector of the parish.[12] On 24 June 2009, the bishop wrote to the plaintiff to invite him to become the rector of the parish.[13] The letter detailed various salary and allowances, and stated:
“The base stipend for the Diocese of Gippsland is set for 2009 at $44,127.00. There is a travel allowance of $9,765.00.
……
If you accept the offer the Registrar will be in contact with you about more information regarding remuneration.
The Diocese operates a central payroll corporate card. Salary sacrifice arrangements are possible within Diocesan guidelines. …”
[12]Exhibit 1 to the Norris affidavit
[13]Exhibit 3 to the Norris affidavit
23 The offer was accepted by the plaintiff by letter dated 26 June 2009.[14]
[14]Exhibit 4 to the Norris affidavit
24 By letter dated 26 June 2009, Norris wrote to the plaintiff acknowledging his appointment, and providing further details as to the terms and conditions of that appointment.[15] The details included payment of the stipend, details of the car allowance, provision for salary sacrifice and the use of corporate credit cards. The letter also enclosed a document entitled - “Administrative Matters – 2009”[16] and two Canon Acts: the Appointments Act 1994 (Gippsland) and the Parish Administration Act 1994.[17] The Administrative Matters document set out in considerable detail a range of financial and administrative matters relating to the appointment of the plaintiff as the rector of the parish. Relevantly, it included:
[15]Exhibit 5 to the Norris affidavit
[16]Exhibit 10 to the Norris affidavit
[17]Exhibits 21 and 22 to the Norris affidavit
·“For many years there has been debate about the way in which clergy hold tenure. Legal advice is that clergy (who are not assistant clergy) are office holders rather than employees of a parish or of the diocese. This makes a difference in some legal matters but there are also many ways in which clergy are treated as employees. For example, PAYG tax, fringe benefits, employer contributions to superannuation and long service leave.” (Clause 2.1)
·The stipend was said to be a monetary allowance rather than a salary. As a result, the relationship was “covenantal” rather than contractual as between employer and employee. (Clause 2.2)
·Costs of accommodation, including heating, lighting and telephone were payable by the parish. (Clause 2.5)
·The Bishop-in-Council contributed a certain fixed percentage for superannuation. (Clause 2.6)
·Travel and vehicle allowances were paid. (Clause 2.7)
·The rector was permitted 28 days’ annual leave. (Clause 2.11)
·Long service leave was provided. (Clause 2.12)
25 Further attached was a document entitled “Guidelines for the Remuneration of Parish Clergy and Lay Ministers”.[18] According to that document:
·“Lay ministers should be paid a salary in accordance with the relevant guidelines, which apply from time to time in the diocese in which they serve. Further, since lay ministers are generally regarded as being employees at common law, care should be taken to ensure that they are paid in accordance with any relevant industrial award which may apply from time to time in the state or territory in which the relevant diocese is situated.” (Clause 5.2) (emphasis added)
·“Stipend or salary paid to a religious practitioner is assessable income, and PAYG deductions are to be deducted and remitted to the ATO in accordance with the requirements of tax legislation.” (Clause 5.4)
·“Workers’ compensation – lay ministers are employees at common law and must therefore be covered by workers’ compensation legislation. The treatment of ministers in the context of workers’ compensation needs to be considered on a state by state basis, as the legislation covering workers’ compensation is state based. As ministers are not employees at common law, they are not automatically ‘workers’ for the purposes of the workers’ compensation legislation unless the relevant state legislation deems them to be workers for the purposes of the legislation.” (Clause 9.1(f))
[18]Part of Exhibit 10 to the Norris affidavit.
26 The Parish Administration Act contained a number of provisions concerning the “incumbent” (or rector) of a parish. Those provisions included:
· The incumbent had the right to live in a rectory (s21(2)(a));
· Was to keep records of certain sacraments (s22(1);
· To surrender keys of the Church and other buildings upon resignation (s23(1));
· To be a member of the parish council (s25(2)(a));
· To report to the parish council annually (s42(b), s44(1)(b));
· To report to the annual meeting of a committee of parishioners (s45(3)(b));
· The parish council shall be responsible for the administration of the funds of the parish (s54);
· To appoint various persons to offices within the parish, including organist, choir director, Sunday school teacher, youth leader, server and verger (s41(1));
· There be no change to the mode of conducting any service save as permitted under the Constitution of the Church, and with the approval of the incumbent and electors. In the case of disagreement, the matter shall be referred to the bishop (s62).
27 According to the Appointments Act:
· The tenure of the incumbent shall be ten years (s13);
· The incumbent may resign by giving appropriate notice to the bishop (s15);
· If the bishop is satisfied the incumbent “is causing, by acts or omissions, serious detriment to the parish” the bishop may require the incumbent to show cause why his appointment should not be terminated (s16(1));
· If the incumbent does not show appropriate cause, the bishop may seek the resignation of the incumbent (s16(2));
· If the incumbent does not resign, the bishop may refer him to a “board of reference” (s16(3));
· That board may take a number of steps, including determining the appointment of the incumbent, transfer him to another appointment, suspend him from office or take no action (s23);
· The incumbent is entitled to recreational leave (s24).
28 On 1 July 2009, the plaintiff completed a tax file number declaration. The Australian Business Number (“ABN”) of the “payer” was 89-363-055-392. According to the ABN registration certificate,[19] the trusts corporation was the entity registered as holding that ABN. According to the tax file declaration, the “payer” was – “Anglican Diocese of Gippsland”.
[19]Exhibit A
29 On 16 September 2009, the plaintiff was inducted as the rector of the parish.[20] At that ceremony, the plaintiff took a canonical oath of obedience.[21] According to that document, upon the first licensing of rector by a bishop, he was required to take the following oath:
“I … do solemnly and sincerely declare my assent to be bound by the Constitution of the Anglican Church of Australia ... and of this Diocese and by the Canon Statutes, Ordinances and Rules, however described, from time to time of the synod of this diocese and of the General Synod … which have force in this diocese.”
[20]Exhibit F
[21]In the form of the document – Exhibit 26 to the Norris affidavit
30 Following his appointment, the plaintiff took up his duties as rector. He was paid the stipend set forth in the letters referred to. A sample payslip was tendered in evidence.[22] The “company” referred to in the payslip was “Anglican Diocese of Gippsland”. The various benefits referred to, including car allowance, were paid, and he was provided with accommodation. He received superannuation contributions.[23]
[22]Exhibit G
[23]Exhibit H – Superannuation Benefits Statement
31 The plaintiff took out an income protection policy through AXA Insurance.[24] The policy provided for a monthly benefit of $4,248.00. The plaintiff has been in receipt of this monthly benefit since ceasing his work with the parish. According to the Norris affidavit, “the premium for this policy is recovered from parishes and clergy at the rate of 50 per cent each”.[25]
[24]Exhibit 15 to the Norris affidavit
[25]Paragraph 19
32 According to the Norris affidavit,[26] the parish was responsible for paying the plaintiff’s stipend. The parish collected money from its parishioners which was remitted to the registry to the pay the stipend, and other expenses.
[26]Paragraph 14
33 As the rector, the plaintiff became a member of the parish council. The parish council met monthly and was chaired by the plaintiff, with other parishioners as members. Various aspects of the parish business were discussed and reported upon in the parish council meetings.[27]
[27]Exhibit D1(a) – Minutes of various parish council meetings
34 According to the plaintiff’s taxation return for the year ended June 2010, the “payer’s name” was said to be the Anglican Diocese of Gippsland.[28]
[28]Exhibit L
The Role of the Bishop
35 According to the bishop’s affidavit, he was not involved in the day-to-day life of the parish, nor in the plaintiff’s day-to-day ministry. He said the plaintiff conducted various sacraments, chaired meetings of the parish council and was involved in various pastoral activities. He said the plaintiff determined what pastoral visits he would make, the sermons he would give at service and the administration of the various Church functions. He said he was in contact with the plaintiff from time to time to offer pastoral care and support. It was not until Easter 2010 that he became aware that the plaintiff was experiencing a conflict with a member of the parish (which led to the plaintiff’s psychiatric injury) and in that year, became more active in attempting to reconcile the conflict. Generally, the exhortation set out the role and duties of the bishop.[29]
[29]T105, L18
36 After the appointment of the plaintiff, there was a dispute between the plaintiff and a member of the parish council as to the appropriate travel allowance to be paid. The member of the parish council considered it appropriate that a travel allowance be paid in accordance with the allowance provided to the previous incumbent. That differed from the allowance described to the plaintiff in the correspondence passing before his appointment. According to the bishop, when the matter was brought to his attention, he spoke to the plaintiff, and to the member of the parish council, an archdeacon, and said that if the plaintiff had been appointed upon terms which included the travel allowance, then those terms should prevail. He said he instructed the member of the parish council “who was causing the ruckus” in no uncertain terms that it was inappropriate to seek to change the detail of the allowance which had been agreed to be provided to the plaintiff. According to the evidence of the plaintiff,[30] his conversation with the bishop was to the effect that a “contract” had been entered, and could not be changed.
[30]T51
37 The bishop said under certain circumstances, he had the power to revoke the licence of a priest or rector. It was generally done in consultation with the Bishop-in-Council. He said the plaintiff was licensed to the position of priest or rector and, as such, he had the right to administer the affairs of his parish, within the parameters of the teaching of the Church, in a manner he deemed appropriate.
38 In cross-examination, the bishop was asked as to the nature of the appointment of the plaintiff to the office of rector and the services that were undertaken in that role. He said the following:
· The bishop had authority to appoint, but did not control the appointment process;[31]
[31]T110, L12
· The bishop did not hire the rector, but licensed him;[32]
[32]T111, L3
· The bishop had the ultimate discretion as to whether someone was licensed;[33]
[33]T111, L7
· The bishop had the right to remove a licence;[34]
[34]T111, L12
· The bishop held the role of “Chief Pastor” and part of that duty was to counsel clergy from time to time;[35]
[35]T113, L18
· The offer to the plaintiff upon appointment was an offer made by the parish;[36]
[36]T116, L26
· The plaintiff was interviewed by members of the parish and those members approached the bishop to make the appointment;[37]
[37]T117, L7
· The Church is essentially a voluntary organisation of people together involved in administering religious affairs in their local community;[38]
[38]T117, L13
· The parishioners are volunteers who, out of their own money, enabled the appointment of a full-time rector. He is not engaged for a job, but rather the parishioners ‘set him free’ with their own resources so that he can minister on their behalf;[39]
[39]T117, L24
· The bishop, at the invitation of those parishioners, licensed the rector, which demonstrated that he is an appropriate person, qualified for the position, to carry out the ministry;[40]
[40]T117, L28
· In that role, the bishop was the agent of the parishioners in the rector’s appointment. The provision of the stipend was to enable the rector to carry out the spiritual duties of the parish and to provide him with an amount of money to live at a reasonable level;[41]
[41]T119, L29
· The role performed by the bishop was not equivalent to that of a chief executive officer. There was no equivalent parallel in the secular world. Essentially, the role is spiritual;[42]
[42]T123, L29
· In the performance of his spiritual duties, the rector was obedient to the bishop;[43]
[43]T124, L31
· In the performance of his spiritual duties, the rector was answerable to the bishop;[44]
[44]T125, L5
· In temporal matters concerning, for example, allowances, stipends, cars, credit cards and the like, any dispute would normally be dealt with by the Bishop-in-Council;[45]
· Part of the basis upon which the rector was licensed was a vow of obedience to the bishop.[46]
[45]T125, L19
[46]T126, L3
The Role of the Trust
39 As stated, the trust was registered as the holder of an ABN. According to the plaintiff’s Group Certificate,[47] the diocese is noted as the payer/employer. The trust’s ABN number is noted on the Group Certificate.
[47]Exhibit L
40 The trust was responsible for the deduction of PAYG taxation payments. It also was the body which received from the parishioners of the parish, the amounts of money necessary to ensure the parish was able to operate financially. From these funds, the rector was paid his stipend and other allowances. The trust operated appropriate bank accounts. The trust held various policies of insurance, including workers’ compensation, for the purposes of the Act.
41 The trust held real estate within the parish. It entered formal contracts in relation to property, and engaged with Government departments in relation to matters such as grants and the like.
42 The trust played no role in matters spiritual, including the appointment of the rector.
The Relevant Legislation
43 At all material times, the Act defined “worker” to mean:
“(a)a person (including a domestic servant or an outworker) who has entered into or works under a contract of service or apprenticeship or otherwise with an employer whether by way of manual labour, clerical work or otherwise and whether the contract is express or implied, is oral or is in writing;
(b)a person who under this Act is deemed to be working under a contract of service;
(c) a person who under this Act is deemed to be a worker;
(d)…
(e)… .”[48]
[48]Section 5 Accident Compensation Act 1985 applicable as at all relevant times, including as at the date of the plaintiff’s appointment as rector, and as at the date of lodgement of the Claim for Compensation (7 June 2011).
44 “Employer” is defined under s5(1) as follows:
“employer includes—
(a) …
(b) …
(c) any person deemed to be an employer by this Act;
… .”
45 Section 12 of the Act, at all relevant times, provided:
“12 Religious bodies and organizations:
(1)Where, by Order of the Governor in Council published in the Government Gazette at the request of a religious body or organization specified in the Order as having made the request, the Governor in Council declares that persons (not otherwise workers within the meaning of this Act) within a specified class are workers of that body or organization, a person within that class shall be deemed to be a worker employed by a person specified in the Order as the employer in relation to persons within that class who shall, for the purposes of this Act, be deemed to be an employer.
(2)Where an Order is made under subsection (1) at the request of a religious body or organization, such amounts as are determined by agreement between the Authority and the religious body or organization shall be deemed to be remuneration for the purposes of this Act.”
46 Neither the Church nor the diocese made any application under s12 of the Act seeking a declaration that an Anglican priest or rector should be specified as a worker under the Act.
“... Contract of Service … or otherwise”
47 In order to be deemed a “worker” within the definition of “worker” in s5 of the Act, the plaintiff must be “a person … who has entered or works under a contract of service or apprenticeship or otherwise with an employer …”.
48 Mr McKenzie, for the trust, addressed the phrase “or otherwise” in his submissions.
49 In Eres v Deer Park Installations Pty Ltd & Steel Mains Pty Ltd,[49] Gray J examined the phrase and a number of earlier Victorian decisions as to its interpretation. He noted, in Ritchie v The Swan Hill District Hospital,[50] the Victorian Full Court said the phrase ought not be read to extend to embrace an independent contractor. In Bailey v Victorian Soccer Federation,[51] Gillard J, by reference to other amendments to the section, said the phrase was intended to “include workers under fictional contracts of service”, including ‘mining tributers’ and tree fellers.
[49]Judgment of Gray J – (unreported) VSC 5643 of 1981 (2 November 1984) BC8400412
[50][1931] VLR 57
[51][1976] VR 13
50 In Eres, Gray J made reference to Hansard,[52] where the following was said:
“The additional words ‘or otherwise’ mean that not only an apprentice but a person who has paid a premium such as a pupil nurse and others in similar positions will now come under the Act.”
[52]First Reading Speech 16 November 1922 – Chief Secretary
51 That case was concerned with whether a worker employed by one defendant, but working at another’s premises, could be a worker in respect of that second defendant occupier. His Honour found the phrase could not be extended to cover that circumstance.
52 Bearing in mind, according to the Hansard speech, that the inclusion of the phrase “or otherwise” in the 1922 amendments to the Act was designed to take account of certain specified areas of employment in the nature of pupilship, or similar, I am not satisfied the words have particular application to the circumstances of this case. There is nothing in the authorities to suggest it was intended the words could be interpreted to extend to a religious context.
53 I am not satisfied the phrase lends any assistance to the key question in this case; that is, whether the plaintiff is a worker under a contract of service with the bishop.
Intention to Create Contractual Relations
54 Section 12 of the Act provides that a religious body or organisation may request that certain persons within that body or organisation, not otherwise deemed workers under the Act, shall be deemed to be workers if a request to that effect is made by the organisation and published in the Government Gazette. Mr Shand submitted that the presence of this section mitigates in favour of ministers of religion of the Church and other like office holders not being “workers” under the Act unless the subject of such a request.
55 However, that submission suffers two defects:
· Firstly, the section does not apply specifically to ministers, priests or rectors[53]. It may, as Mr Griffin suggested,[54] be related to volunteers, or other members of religious organisations not in receipt of formal salaries. That argument has some force given the 1986 amendment to the Act changed the phrase ‘minister of religion’ to ‘persons’;
· Secondly, whether a rector is a “worker” under the Act falls for determination upon the particular facts and circumstances of each case, rather than from the presumption said to arise from the section.
[53]The section previously contained the words “ministers of religion” and was amended to “… persons ...” by S7 of the Accident Compensation (Amendment) Act 1986.
[54]T128, L30
56 In my view, the section does not advance the issue in this case one way or the other.
57 Mr Shand further submitted that it was necessary, in order for there to be a contract of service, that the parties, relevantly the plaintiff and the bishop, had intended to create a legal relationship, giving rise to enforceable legal obligations. That, he said[55], correctly in my view, is to be determined from an objective view of all of the circumstances, rather than from a statement from a party that he did or did not have the requisite intention. He set forth five grounds[56] upon which he said no such intention existed, including that the arrangement was not an ordinary commercial transaction, but rather an appointment to ecclesiastical or spiritual office.
[55]T169, L26
[56]Paragraph 16 of second defendants’ submissions
58 The question of the intention to create legal relations was the subject of examination in Ermogenous v Greek Orthodox Community of SA Inc.[57] That case concerned an alleged contract of employment between the Archbishop of the Greek Orthodox Church in Australia and the defendant, a Greek Orthodox community organisation, an incorporated body, formed for the purpose of fostering Hellenic culture in a range of areas, including the practice of the Greek Orthodox religion. One of the grounds of appeal from the Full Court of the Supreme Court of South Australia was that the Full Court concluded the trial judge (an industrial magistrate) had failed to consider whether the parties had the necessary intention to create contractual relations. Although there was no specific reference to that issue, both the plurality[58] and Kirby J concluded that the trial judge’s consideration of the question “Can a minister of religion be in law an employee” involved a consideration of the issue of intention to create legal relations.
[57](2002) 209 CLR 95
[58]Gaudron, McHugh, Hayne and Callinan JJ
59 In the course of their judgment, the plurality said:
“… To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet ‘[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts’.
… Because the search for the ‘intention to create contractual relations’ requires an objective assessment of the state of affairs between the parties … the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. … .”[59]
[59]Ermogenous at paragraph 24-25
60 The Court said further:
“That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract, and the respondent in this appeal did not seek to advance any such absolute proposition. … .
… although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies:[60]
‘Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse.’ … .”[61]
[60][1986] 1 WLR 323 at 329
[61]Ermogenous at paragraph 38
61 Kirby J, in an extensive judgment, examined contractual intention, and said:
“The suggestion that a priest, pastor, rabbi, mullah or minister of religion (‘minister of religion’), including an archbishop, is by virtue of that status incapable of forming an employment contract with his or her church or religious organisation is but another way of saying that any arrangements made for sustenance and similar benefits with such a person are not ones that the law treats as justiciable. Or that such arrangements are not ones that, of their nature, the parties are taken to have intended would give rise to obligations that may be enforced in a court of law.”[62]
[62]Ermogenous at paragraph 55
62 His Honour went on to distinguish a number of English cases. He said there were significant differences adopted by the courts of England (and those of the United States) as against those of Commonwealth jurisdictions, in particular Australia. He said further:
“However, to designate the relationship between a minister of religion and a suggested employing body associated in some way with the minister's religion as, of its nature, outside a legally enforceable contract of employment, because of the ‘spiritual character’ of the minister's vocation, supposes a principle that is too widely expressed. At least, it is too widely stated when such relationships are viewed with Australian eyes taking into account the very different history of religious organisations in this country and the different character of the polity established by the Australian Constitution, when compared with the position of the churches in the United Kingdom or, for different reasons, in the United States.”[63]
[63]Ermogenous at paragraph 62
63 Further:
“I am unconvinced that the English cases cited by Bleby J warrant a conclusion that, in Australia, a contract partaking of the usual features of one of employment, necessarily loses that character because it relates to the vocation of a minister of religion. A minister of religion must be housed, must eat, be clothed and otherwise be provided for. The fact that his or her vocation is, at one level, spiritual in purpose and character does not, of itself, remove the possibility that arrangements for necessities may have been intended to be enforced when it is proved that such arrangements have been breached. If one starts with the proposition that a religious vocation is in law an ‘office’ created by the public law and in its essential character is only a ‘spiritual’ one, it is comparatively simple to arrive at a different result than if one accepts the postulates that have developed in Australian law because of the different history of churches and other religious organisations in this country. Courts here, as elsewhere, will be hesitant to enforce purely spiritual and theological rules. But they will not hesitate to enforce, as arrangements intended to have contractual or other binding force, rules of a proprietorial character concerned with proprietoral rights.
Within this dichotomy, a proved agreement with a body such as the respondent to provide for the necessities of life of a minister of religion, or even of an archbishop, is an arrangement of the second kind. It is not one which, of its character, Australian law will refuse to enforce because the law presumes a lack of intention to enter legal relations or classifies the resulting dispute as non-justiciable. To the extent that English decisions, starting from a different history and legal foundation and taking a different approach, reach a different conclusion, they do not express the common law of Australia.”[64]
[64]Ermogenous at paragraphs 66 and 67
64 Further:
“… That trend does not, in my judgment, sustain a broad proposition, still less a general legal rule, that ministers of religion (including archbishops) and those who make arrangements for their necessities cannot intend to enter contractual arrangements because the ministry involved is ‘spiritual’ in character and for that reason is fundamentally incompatible with legal enforceability.
Even people of a spiritual vocation normally need stable arrangements for the necessities of life. In a case where such an agreement is proved with an identifiable party and it is breached, the victim of the breach is not beyond the law's protection. Australia is a secular polity. There is no general rule that the ‘spiritual character of the relationship’ concerned ‘militate[s] against a finding that the necessary intention [to enter] into contractual relations has been formed’. … .”[65]
[65]Ermogenous at paragraphs 75 and 76
65 I conclude, in particular from the comments of Kirby J, that the fact of the plaintiff’s appointment as a minister of religion, and his tasks in the pursuit of that office are principally spiritual, does not preclude himself or the bishop having the necessary intention to create a legal relationship, in particular in respect of those secular matters which are part and parcel of his employment. It is not to the point, as was urged by Mr Shand, that the case was concerned with a leave entitlement, or that purported employer was a community organisation[66]. As Kirby J said, matters such as housing, the provision of a stipend to enable him to live comfortably, and the various other employment benefits are all matters in respect of which Australian courts “will not hesitate” to enforce contractual proprietorial rights. Mr Shand relied upon a range of English decisions to the effect that an appointment to ecclesiastical office was a consensual compact of a spiritual nature, in respect of which the parties could not be said to have formed the intent to create contractual relations enforceable at civil law.[67] For the reasons espoused by Kirby J, the English decisions are of little assistance on the issue. I note, however, recently in Percy v Board of National Mission of the Church of Scotland[68], the House of Lords found an assistant minister in the Church of Scotland was an employee and the Board, in paying her a salary and other entitlements, evinced an intention to create legal relations enforceable in the event of a breach. Lord Nicholls said:
“The context in which these issues normally arise today is statutory protection of employees. Given this context, in my view it is time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect and, in consequence, its ministers denied this protection.[69]”
[66]Ermogenous at paragraph 55
[67]Diocese of Southwark & Ors v Coker [1998] ICR 140 at 147-8; Davies v Presbyterian Church of Wales [1986] 1 WLR 323; JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938; In re National Insurance Act 1911: In re Employment of Church of England Curates [1912] 2 Ch 563.
[68][2005] All ER (d) 229 (Dec)
[69]Percy at paragraph 26
66 Indeed, the aspects of the plaintiff’s appointment as rector did concern secular issues, such as his stipend, accommodation, travel allowance, annual leave, long service leave and use of a credit card. These were all matters which were clearly intended at the time of the plaintiff’s appointment to be binding and to create the basis of an enforceable contractual relationship. The fact that the plaintiff’s duties were principally spiritual does not alter that, nor does the fact that some of the entitlements may be enforceable through the canon law. The plaintiff and his family had moved from Tasmania. His wife and children had to be fed, and accommodated. While he no doubt was a person with a spiritual calling, that does not mean the secular aspects of his appointment were of little moment. I infer from in particular the letter from the bishop of the 24 June 2009 containing details of the stipend and allowances, the reply by the plaintiff accepting the offer and the material from Norris that followed, the plaintiff and the bishop had the requisite intention to enter a binding agreement in those terms.
67 Moreover, the issue which caused commencement of the principal proceeding, the allegation by the plaintiff that he was bullied by another member of the diocese in the course of his employment duties, as a result of which he suffered psychiatric injury, is clearly a non-spiritual or non-ecclesiastic matter. In that proceeding, the Act required the plaintiff to prove that he suffered injury arising out or in the course of his employment. As the plurality in Ermogenous said, there are “aspects of the relationship which may give rise to legally enforceable rights and duties”. That does not mean that every part of the plaintiff’s ministry would be the subject of an employment contract. For example, if there was a dispute as to whether the plaintiff’s interpretation of the Gospel preached from the pulpit was correct, it would be a matter for determination within the Church and not the subject of any contract of employment justiciable in the civil courts. However, the statement of claim pleads the plaintiff suffered injury in the course of his employment as a result of which he says he is entitled to the payment of weekly compensation, medical expenses and the like. Nothing could be more secular.
68 I conclude the fact that the plaintiff’s appointment was to a religious post does not preclude an intent on the part of the plaintiff and the bishop to enter a contractual relationship. I shall go on to consider the other arguments put by Mr Shand[70] shortly.
[70]Set forth at paragraph 39 and following of the submissions of the second defendant
Was there a Contract of Service?
69 Mr Shand submits there was neither an intention to create enforceable legal relations, nor a contract of service or employment, for the following reasons:
· Firstly, there was a paucity of terms and conditions of the alleged contract. While there was reference to the base stipend and travelling allowance, there was no reference to the tenure of the position, the duties and functions to be performed, the review of the stipend and who would pay it, the right of residence or details as to long service leave. Thus the alleged contract was incomplete.
· Secondly, the parties’ conduct subsequent to the exchange of letters in June 2009 mitigates against an intention to enter legal contractual relations. Subsequently, Norris provided details of administrative matters, including information which noted that ministers or priests were not automatically “workers” under state legislation. Mr Shand submitted that is a reflection on how the bishop and the Church saw the appointment of the plaintiff.
· The relationship was governed by church law, rather than civil contractual law. The bishop did not assume responsibility to pay the base stipend or other expenses in his letter of offer. That responsibility rested with the parish council from monies raised from its parishioners. Any contractual relationship for payment thus lay with the parish council. Any right of the plaintiff to enforcement of his stipend and other matters lay under cannon law, which was not to be treated as an implied term of any contract.
· The appointment of the plaintiff to the office of rector was undertaken pursuant to the Appointments Act 1994 (cannon law). However, this was upon the recommendation of the Clergy Appointments Advisory Board. All aspects of the appointment were covered by canon law, in particular the Appointments Act.
· The nature of the duties and functions of the rector were incompatible with an intention to create legal relations, or a contract of employment. The plaintiff did not work any particular hours and the various sacraments he administered were undertaken without direction from the bishop. He was able to choose various persons to be part of his ministry and there was little control by the bishop as to the manner in which that was performed. His administration of the parish was in conjunction with the parish council and not the bishop.
· There was an absence of control by the bishop over the plaintiff in respect of his duties and functions in the parish.
70 There are a number of matters to be taken into account in determining whether there was a relationship of employment. In Elazac Pty Ltd v Shirreff,[71] the Court of Appeal noted that “control” was no longer a determinative factor in deciding whether a person was an employee. Modern authority was to the effect that the totality of the relationship between the parties was to be considered. Relevant factors included:
[71][2011] VSCA 405 at paragraph 30
(a) the degree of control exercised;
(b) whether what was being supplied was the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c) whether or not the person engaged can set their own hours;
(d) the method of payment;
(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f) whether the person engaged employs his own employees;
(g) whether or not there is a power to delegate; and
(h) whether or not the person engaged considered the relationship as one of independent contractor.
71 Elazac concerned the question as to whether a person engaged was an employee on the one hand or an independent contractor on the other. Nonetheless, the principles set forth provide some guide. The whole of the relationship between the parties must be examined, including the nature and circumstances of the appointment. The duties to be undertaken and the manner in which those duties were to be conducted, are all relevant.
72 As stated, the significance of control in determining whether there was a contract of employment or services has diminished as a determinative factor. In The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others,[72] in the context of whether a religious order was vicariously liable for the actions of its members, the English Court of Appeal said:
“In days gone by, when the relationship of employer and employee was correctly portrayed by the phrase ‘master and servant’, the employer was often entitled to direct not merely what the employee should do but the manner in which he should do it. Indeed, this right was taken as the test for differentiating between a contract of employment and a contract for the services of an independent contractor. Today it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee. Many employees apply a skill or expertise that is not susceptible to direction by anyone else in the company that employs them. Thus the significance of control today is that the employer can direct what the employee does, not how he does it.”
[72][2012] UKSC 56
73 Similar comments on the issue of control were made by Kirby in Ermogenous.[73]
[73]Ermogenous at paragraph 81
74 In England, the question of whether a priest is an employee has been considered in a range of cases. In JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust,[74] the Court of Appeal considered the English cases, and concluded there was no contract of service between a Roman Catholic Bishop and a priest who had sexually abused a claimant. However, for the reasons given by Kirby J in Ermogenous, I am not satisfied that the English line of authority stands as good law in Australia.
[74](supra) at paragraph 22 and following
75 In Sturt & Anor v The Right Reverend, Dr Brian Farran, Bishop of Newcastle & Ors,[75] Sackar J, in the New South Wales Supreme Court, considered a case involving two Anglican priests who were the subject of disciplinary proceedings undertaken by the Synod of the Diocese of Newcastle. In the course of his extensive judgment, his Honour considered whether the priests performed their roles pursuant to a contract of employment. He considered the principles established by the High Court in Hollis v Vabu Pty Ltd,[76] in particular, the seven factors referred to as constituting employment. He referred to the decision of Ermogenous, although not the comments of Kirby J to which I have referred. In reaching the conclusion he did, his Honour noted that there was scant evidence upon which to base the existence of a relationship of employer/employee. There was no reference as to the manner in which the priests were to carry out their duties and little evidence as to the issue of control. The decision in that case does not significantly assist the issues under consideration in the present application.
[75][2012] NSWSC 400
[76](2001) 207 CLR 21
76 In determining whether there was an intention to create legal relations, and a contract of service between the plaintiff and the bishop, in accordance with the authorities to which I have referred, the following appear to me to be relevant:
· The plaintiff had communicated with the bishop before the meeting of the Appointments Board on 11 June 2009 and there had been discussion between them about the position. It was at the recommendation of the bishop that the Board confirmed the appointment of the plaintiff. The minutes record “John (the bishop) to invite the Reverend Ken McDermid to take up the appointment of the Parish of Yarram”;
· The letter of offer to the plaintiff, including details of the stipend and other benefits was on the bishop’s letterhead and signed by him. The letter commences “I am writing to invite you to become the Rector of Yarram within the Diocese of Gippsland”. It notes the registrar would provide further information regarding remuneration;
· The acceptance of the offer by the plaintiff was directed to the bishop by letter dated 26 June 2009. It commences “It is with great pleasure that I accept your kind invitation to become Rector of Yarram in the Diocese of Gippsland”;
· Subsequently, by letter dated 26 June 2009, Norris provided further details as to the appointment, including the provision of various forms, details as to the payment of the stipend and other allowances and the provision of an administrative matters’ circular and the Appointments and Parish Administration Acts. The letter commences “The Bishop has advised me you have accepted appointment as the incumbent of the Parish of Yarram and so consequently I write to provide some administrative information in preparation for your move to Gippsland as well as asking you to fill out some forms”;
· On 16 September 2009, the plaintiff was licensed or appointed as rector by the bishop;
· Many aspects of the plaintiff’s retention as rector were in the nature of an employment relationship. These included:
§ he was paid a stipend from which PAYG tax was deducted;
§ he was entitled to the use of a corporate credit card;
§ he was paid a travel allowance;
§ he was entitled to employer superannuation contributions;
§ he was entitled to long service leave;
§ he was entitled to a motor vehicle allowance;
§ he was entitled to 28 days’ annual leave.
· As part of his exhortation when appointed an Anglican priest, he was required to proclaim that he would obey his bishop;
· If the bishop was satisfied that the plaintiff, by his actions, was causing serious detriment to the parish, he had the right to require the plaintiff to show cause why his appointment should not be terminated (s16 of the Appointments Act). If a cause was not shown, the bishop had the right to terminate the plaintiff (s16(2) of the Appointments Act);
· While undoubtedly the day-to-day tasks involved in the plaintiff’s ministry were left to his discretion, the bishop provided some supervisory role. This was exemplified when there was a dispute as to the motor vehicle allowance, and the bishop “counselled” the member of the parish said to be causing the conflict. I accept the evidence of the plaintiff that in the course of that process the bishop used words to the effect that as a “contract” had been entered, it could not be changed. While this phrase is not determinative of an intention to enter a contractual relationship, it nonetheless showed the power and influence of the bishop and that it was he who was called upon to mediate the dispute;
· The bishop accepted it was part of his role to counsel the clergy in his diocese. He was the “Chief Pastor”. When the issue was raised that the plaintiff and a member of the parish were in dispute (which as I understand it was the genesis of the claim for bullying), the bishop stood in to attempt to counsel and resolve the dispute;
· The bishop accepted that under certain circumstances he had the power to revoke a licence of a rector, usually in consultation with the Bishop-in-Council;
· The bishop had the ultimate discretion as to whether someone was accepted as rector or not;
· The bishop acknowledged that in the appointment process, he was the agent of the parishioners in the plaintiff’s appointment;
· The plaintiff was obedient to the bishop in the performance of his spiritual duties;
· An element of the licence of the plaintiff was his vow of obedience to the bishop.
77 Mr Shand submits there was a paucity of terms such as to give rise to a contract of employment. To the contrary, the terms were extensive, and set forth not only in the original letter from the bishop to the plaintiff but, in addition, in the administrative and other material provided by Norris subsequently. The fact that the material was provided by Norris and not the bishop does not alter the issue that it was the bishop who was the contracting party. Likewise, the fact that the plaintiff’s stipend was not paid by the bishop makes no significant difference. The modern workplace is an environment very different to that encountered twenty, even ten years ago. Employees operate from home, working hours they are able to determine, providing the work allocated to them is completed. With the advent of labour hire firms, remuneration and allowances are not always paid by an employer. Workers often have skills beyond the understanding of their immediate superiors and are not subject to direction as to how they perform their tasks.[77] With the advent of emails and the internet, some employees rarely attend a workplace. The fact that the plaintiff was subject to little control by the bishop in the performance of his day-to-day spiritual duties, is not a matter of great significance in determining whether there was an employment contract.
[77]See Ermogenous at paragraph 82
78 Mr Shand further contends that the parties’ conduct subsequent to the exchange of letters in June 2009 mitigated against an intention to create contractual relations. In particular, the information provided to the plaintiff stated that ministers were not employees at common law and therefore not automatically “workers” for the purposes of the Act. While that may have been the view of the Church at the time, it does not mean that became part of the contract of employment. The Church does not have the right to contract out of the Act.
79 While it is true that the Appointments Board appeared to confirm the appointment of the plaintiff, that confirmation was at the behest of the bishop. Of more importance, the bishop was the person responsible for licensing the plaintiff to the position of rector. Much of Mr Shand’s argument was to the effect that the whole nature of the relationship between the plaintiff and the bishop, and the circumstances of his appointment were ecclesiastical in nature, and governed by canon law. However, for the reasons set forth above in considering whether the parties had the requisite contractual intent, I am satisfied that certain aspects of the plaintiff’s employment were indeed secular.
80 I have concluded there was the requisite intention to create contractual relations. I accept a contract of service was entered. The terms of that contract, in accordance with the Statement of Claim,[78] comprised written, oral and implied terms.
[78]Paragraph 4 of the plaintiff’s Amended Statement of Claim
81 The question remains as to whether the bishop was the employer. It is clear and acknowledged by Mr Griffin, the trust could not be the employer. It was incorporated for the purpose of holding and administering property for the Church. Other bodies, all unincorporated, bear consideration. The Clergy Appointments Advisory Board[79] was involved in the plaintiff’s appointment. However, according to the Appointments Act:
“The function of the Board is to make recommendations, or nominations, to the bishop for the appointment of incumbents to parishes and the extension of tenure beyond ten years.”[80]
[79]Referred to as the Appointments Board – Exhibit CB1 to the bishop’s affidavit
[80]Section 4(2) of the Appointments Act
82 The Board’s only involvement was therefore to make recommendations. It was a matter for the bishop to appoint the plaintiff as rector.
83 Further, there was the Bishop-in-Council, an unincorporated body to which the bishop consulted in certain matters. It also made contributions to the superannuation of the rector. However, it played no role in the appointment of the plaintiff. Although it may play some role were a rector to be dismissed, that role was consultative with the bishop. It could not be said to be an employer. According to the Bishop-in-Council Act its role was related to the management of the property and funds of the diocese.
84 Finally, there is the diocese itself. The diocese is comprised by all of the parishioners of Gippsland. According to the plaintiff’s tax file declaration, “the payer” was said to be the diocese. It, in particular the parish, was responsible for the provision of sufficient funds to enable the plaintiff to be paid his stipend, and various other benefits. It would be unwieldy in the extreme to bring a proceeding against the diocese as it would have been brought against each and every parishioner of the diocese. Again the diocese had no role to play in the appointment of the plaintiff, nor licensing him as the rector. Neither it nor the parishioners played any role in the day-to-day ministry of the plaintiff, save to be the recipients of that ministry. Neither it nor the parishioners had power to dismiss the rector.
85 Although it is not appropriate to conclude the bishop was the employer by a process of elimination, or that he is the only legal person available, nonetheless by reason of the matters referred to in paragraph 76 hereof, I am satisfied circumstances disclose the bishop had the appropriate intent to enter a binding contract of services, and that that contract was entered as between the plaintiff as employee and the bishop as employer.
86 The plaintiff’s application, so far as it concerns the bishop, succeeds. The plaintiff’s application against the trust will be dismissed.
87 I shall hear from the parties as to costs.
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