Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc

[2019] VSC 544

THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
GENERAL LIST

S CI 2015 04742

CHRISTINE MOALA AND OTHERS (According to the Schedule attached hereto)	Plaintiffs
v
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 31 July 2019
DATE OF RULING:	16 August 2019
CASE MAY BE CITED AS:	Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc
MEDIUM NEUTRAL CITATION:	[2019] VSC 544

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CHURCHES – Unincorporated Church Fellowship – Members – Whether infants or minors could be members of the Fellowship – Whether requirement that persons be eighteen years of age to be members.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Sowden	Reichman & Co
For the Defendant	Mr N Elias	Prolegis Lawyers

SCHEDULE OF PARTIES

No. S CI 2015 04742
BETWEEN:
CHRISTINE MOALA	First Plaintiff
HANITELI TAUATEVALU	Second Plaintiff
TUIA VEA	Third Plaintiff
TOAKASE KALU	Fourth Plaintiff
ANA’UTA GRIMA	Fifth Plaintiff
LATUSILATOLU TAUNISILA	Sixth Plaintiff
PITA OFAMO'ONI	Seventh Plaintiff
VIKA TAUTALANOA	Eighth Plaintiff
SITIVENI FA	Ninth Plaintiff
APIKALE FA	Tenth Plaintiff
MELE LOISI LATU	Eleventh Plaintiff
VAI PAUA	Twelfth Plaintiff
SEMISI PAUA	Thirteenth Plaintiff
TEVITA KAFOIKA	Fourteenth Plaintiff
ANA FINAU	Fifteenth Plaintiff
FISI’IAHI TU’ULAKITAU	Sixteenth Plaintiff
SITANI FALEPAINI	Seventeenth Plaintiff
EMELI FALEPAINI	Eighteenth Plaintiff
FALEPUNA KAFOIKA	Nineteenth Plaintiff
MELE LINO	Twentieth Plaintiff
MOHELATA WALLS	Twenty-first Plaintiff
SENETI TAUFA	Twenty-second Plaintiff
POUSIMA TAUFA	Twenty-third Plaintiff
MAKA TU’ULAKITAU	Twenty-fourth Plaintiff
FOHE TAUTALANOA	Twenty-fifth Plaintiff
SIONE MILITONI HALAHALA	Twenty-sixth Plaintiff
MARYANNE FORD	Twenty-seventh Plaintiff
TUIPULOTU OFAHENGAUE	Twenty-eighth Plaintiff
VILI OFAHENGAUE	Twenty-ninth Plaintiff
KOLINI TAUFA	Thirtieth Plaintiff
AND
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC	Defendant

HIS HONOUR:

1. The parties have argued about whether children, that is minors at law, are entitled to be regarded as foundation members of the Fellowship. This issue arises in respect of the Fellowship immediately before the defendant became an incorporated association on 4 March 1991.

1. A number of the persons whom the defendant contends were foundation members were aged less than 18, and in some cases were infants of only two or three years as at 4 March 1991. With the passing of time they have turned 18 and are now adults.

1. Under Victorian law the age of majority is 18.[1] Thus, minors cannot vote at elections, stand for Parliament, serve on juries or carry out a number of other significant acts.

   [1]See Age of Majority Act 1977 s 3(1) and see also Supreme Court Act 1986 ss 49-51; cf Children, Youth and Families Act 2005 s 3(1).

1. In the judgment of 29 March 2019,[2] I determined that the Fellowship’s membership rule required at least three months active participation in its activities by baptised persons, as demonstrated by the actions of regular attendance at church services and allocation to, and regular attendance at, class group meetings. The question of whether children could be members of the Fellowship was not argued before me and not decided by the orders of 18 April 2019.

   [2]Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205.

1. The Working Group whose creation I ordered has received applications for membership by persons who were minors when the Association was incorporated.

1. The parties made the following submissions. The plaintiffs submitted that the membership rule, that I had determined, should be qualified by imposing an age restriction of 18 years for a person to be a foundation member. They submitted that the structure and terms of the Fellowship’s Constitution indicated that it was concerned with adults who had an understanding of, and belief in, the tenets of the Free Wesleyan Church.

1. This was evident from the objectives of the Constitution, and its requirement that persons could only vote after three months of membership and only hold office after a year of membership. The right to vote required some level of maturity and voting was an integral aspect of membership. Similar maturity was required of persons who sought election as an office holder. A minor could not consciously form a decision and vote on a matter. The Court should follow society’s approach and accept that capacity under law and eligibility are attained at the age of 18.

1. Secondly, the Fellowship’s Constitution was a contract between the Fellowship and its members. Minors do not have capacity to enter into contracts, except for necessaries.

1. Thirdly, requiring persons to be 18 as at 4 March 1991 to be foundation members of the Fellowship did not prevent minors from becoming members of the Church once they had received the sacrament of baptism. But they did not thereby obtain the capacity to be members of the Fellowship.

1. The limited evidence that persons under the age of 18 may have voted at meetings, such as quarterly meetings, was not decisive. The evidence suggested that the Fellowship’s rules were often not followed.

1. The defendant submitted that there was no minimum age requirement for membership of the Fellowship. There was no such requirement in the law or in the Constitution as it said that membership was open to everyone. It distinguished membership from voting rights by stipulating that three months’ membership was required before a person could vote. A person could be a member without being able to vote.

1. The Fellowship’s custom and practice seem to have been that young people could be members of the Church. This was evident from Ms Grima’s, Ms Moala’s and Ms Kalu’s evidence.

1. There was no specific evidence about the minimum age at which people could or did vote in elections in the Fellowship, and certainly no evidence that one had to be 18 years of age to do so. There was evidence of a Lotu Fehu’i being only 14 years of age. Toddlers and babies could actively participate in the Church in ways appropriate to their age, for instance by attending Sunday school.

Analysis

1. The Fellowship’s Constitution in its 1986 second edition provided that:

B.        THE BAPTISM

1.The Sacrament of Baptism represents the admission of people into the Holy Church of Jesus Christ, and has been undertaken since the beginning of the Church. The baptism of both adults as well as young children are welcomed because the Bible says, “… one died in place of everyone, so that they may receive the blessings as a result of the sacrifices made for the world…” As we appreciate God’s will, any person is welcomed to join the Holy Church through baptism.

1. As a result and as in other Christian churches, a minor who was baptised, even soon after they were born, became a member of the Church. But, that did not mean that the minor would thereby become a member, let alone a voting member, of the Fellowship.

1. Under the heading ‘Members’, the Constitution provided that:

Membership is open to anyone wishing to join, but names must be registered and listed in the Registry Book.

1. The Fellowship’s Constitution did not expressly require any minimum age for membership. But it provided that a person who was a member after the qualifying period of three months was allowed to vote, and after one years’ membership was entitled to stand for office.

1. The Fellowship’s Constitution read as whole did not anticipate that minors could be members. Rather, it is to be read as indicating that some capacity to make a reasoned decision is required for a person to be a member. Some minimum age for a person to be able to become a member had to be implied. That is because a member could vote after the qualifying period, and voting required some deliberative capacity. The word ‘vote’ means a formal expression of will, wish, or choice in some matter, whether as a single individual, as one of a number interested in common, or a body of individuals signified by a voice or by ballot.[3]

   [3]Macquarie Dictionary (7^th ed, 2017), 1680.

1. My ruling as to the Fellowship’s membership rule was made in circumstances where the requirement that members’ names be entered in the Registry Book had not been observed. I decided that, to be a foundation member, a baptised person must have had at least three months’ active participation in the Fellowship’s activities as demonstrated by the actions of regular attendance at Church services and allocation to, and regular attendance at, class group meetings.

1. It is true that minors could actively participate in Church affairs, for instance by going to Sunday school, attending youth groups and attending Sunday services with their families. But, I consider that in context, the active participation that was required to become a member of the Fellowship was participation by those who are able to make a reasoned judgement about the Fellowship’s affairs. After all, members could vote at general meetings of the Fellowship at which important matters were to be discussed.[4] The duties of office holders listed in the Constitution carried significant responsibilities for the activities, financial and otherwise, of the Church.

   [4]See the Fellowship Constitution Chapter 3, rule B iii; Chapter 7, Rule C 1.

1. The age at which a person can make a reasoned decision will vary. That is why society has adopted a uniform rule, by which the age of majority is obtained on a person’s 18^th birthday. I consider that, given the importance and responsibilities of membership of the Fellowship, the Constitution should be read as subject to an implication to the same effect. It is not possible to imply differing qualifying ages dependent on an assessment of the maturity of particular minors.

1. It is true that as counsel for the defendant submitted, the Fellowship’s Constitution did not expressly contain such a requirement. But, no evidence of custom and practice about persons under the age of 18 voting or standing for office is before the Court.[5] That may be because this question was not in issue at the trial.

   [5]As to the effect of custom and practice see the cases referred to in Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205, [140]-[142] and Woodford v Smith [1970] 1 WLR 806.

1. Counsel for the defendant referred to the evidence that some people regarded themselves as members once baptised. In my opinion, such persons were members of the Free Wesleyan Church and thereby Christians, but not members of the Fellowship in accordance with its Constitution.

1. I am not persuaded that the evidence that one 14 year old had been accepted as a Lotu Fehu’i indicated that there was any practice that persons under the age of 18 were regarded as members of the Fellowship.

1. The common law’s approach to minors’ legal capacity is that persons under the age of 18 can enter into contracts for necessaries or for their benefit.[6] In the latter case those contracts are voidable. The authorities suggest that it is probable that a minor cannot be elected to an office, but it is clear that, if elected to an office, they cannot be admitted to it, especially if the office is one of pecuniary trust.[7]

   [6]For instance an infant can hold shares: Homestake Gold of Australia v Peninsula Gold Pty Ltd (1996) 131 FLR 447, 456.

   [7]Halsbury’s Law of England (5^th ed, LexisNexis) vol 24 Corporations, ‘3 Membership and Governance’ [357].

1. At common law, a minors’ capacity to be a member of a corporation depends upon whether the charter or statute under which the corporation was constituted indicates that they can be members, whether expressly or by implication. Where the charter or statute contains no express provision on the subject, a minor’s capacity to be a member depends upon whether the charter or statute contemplates the exercise by the members of functions which may or may not be discharged by persons of tender age.[8]

   [8]Halsbury’s Laws of England (5^th ed, Lexis Nexis) vol 9 Children and Young Persons ‘1 Childhood and the Capacity of Children’ [90].

1. The decision of Eve J in In re Royal Naval School[9] is relevant to the determination of whether there was a minimum age for membership of the Fellowship. His Lordship considered the statute that established the Royal Naval School for the education of the children of officers in the Royal Navy and Marines. The statute provided that ‘any person’ who should pay to the treasurer of the School the amount fixed should be a member of the corporation. One of the defendants, on whose behalf the required subscription had been paid, was an infant and a pupil at the school and voted at a meeting of the institution at which an important proposal affecting the future of the school was debated. The voting thereon was so evenly divided as to lead both sides to investigate the qualifications, as members of the corporation, of several of those whose votes were recorded. A summons was issued raising the question of whether the expression ‘any person’ included an infant, so that he could become a member of the corporation and vote at meetings.

   [9][1910] 1 Ch 806.

1. Eve J held that there was nothing in the statute to show that the word ‘person’ included an infant, and having regard to the fact that the corporation was formed for the establishment and management of the School, and that every member of the corporation was eligible for appointment to the council of the institution, the Legislature could not have intended that the membership of the corporation should include minors; and the infant, therefore, was not eligible to be a member.

1. His Lordship applied the judgment of Lord Mansfield in R v Carter.[10] That case concerned proceedings against the defendant to show by what authority he claimed to exercise the office of burgess of the borough of Portsmouth, seeing that at the time of his supposed election to be a burgess he was at the age of five years and ten months and no more. Lord Mansfield considered that this depended on whether the King had, by the charter, given the corporation a power to grant inchoate rights to an infant, to be put in execution upon their attainment of the age of 21. He considered that no such power was given by the charter.

   [10](1774) 1 Cowp 221.

1. In the Royal Naval School case, Eve J considered that the determination of the rights of the infant required construction of the legislation:

So treating it, and bearing in mind that the corporation of which I am now dealing was formed for the establishment and management of a school, that every member of the corporation is eligible for appointment to the council of the institution, and further that, ‘the law knows of no distinction between infants of tender and mature years’ (per Parke B. in Morgan v Thorne), I cannot bring myself to believe that the Legislature ever contemplated or intended that the membership of this corporation should include individuals drawn from that class of the community from which undoubtedly the pupils attending the school, and enjoying its benefits, would be drawn, that is to say, the class of minors. I hold, therefore, that an infant is not eligible as a member of the corporation[11].

[11][1910] 1 Ch 806, 813.

1. While the nature of the institution considered in the Royal Naval School case differed from the Fellowship, in my opinion the judgments of Eve J and of Lord Mansfield in Rex v Carter provide assistance in deciding the present issue. The Fellowship’s Constitution was silent as to any minimum age requirement. Some implication had to be made, at least in respect of the right to seek office. The Constitution provided that, after the respective qualifying periods, members could vote on important issues and stand for offices which carried significant responsibilities in the life of the Fellowship. It cannot have been anticipated that ‘infants of tender years’ would vote or stand for office. The law draws no distinction between minors of different years. I conclude that an implication of a minimum age for membership, and thereby for voting and standing for office, had to be made in the Fellowship’s Constitution. That age was the age that Victoria accepts and accepted in 1991 as the age of majority – the age of 18 years.

Conclusion

1. My ruling is that in order for a person to have been a founding member of the Fellowship immediately before the incorporation of the defendant on 4 March 1991, the person must have been 18 years of age or older.