Peters & Ors v Kerle & Ors
[1997] QSC 68
•24 April 1997
IN THE SUPREME COURT
OF QUEENSLAND No. 364 of 1994
Brisbane
Before the Hon. Justice Fryberg
[Peters & Ors v Kerle & Ors]
BETWEEN:
GUSTAV PETERS, HANS STUTTE AND GREGORY WILLIAM HECK representing themselves and others.
Plaintiffs
AND:
LESLIE B KERLE, BEVAN R WENDT AND KEVIN L KREIS representing themselves and others.
Defendants
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 24th April 1997
CATCHWORDS: ASSOCIATIONS AND CLUBS - Rules and meetings - Whether rules of association envisage membership by individuals - Whether compliance with rules relating to withdrawal from membership
ASSOCIATIONS AND CLUBS - Incorporated associations - Constitution as member - Whether unincorporated association can be a member of an incorporated association - Associations Incorporation Act 1956 (S.A.) - Associations Incorporation Act 1985 (S.A.) ss.3, 4(2)
ASSOCIATIONS AND CLUBS - Expulsion, suspension and disqualification - Grounds for expulsion - Disobedience of constitution and by-laws of association.
COUNSEL:W. Sofronoff Q.C. and with him R. Douglas for the plaintiffs
F.L. Harrison Q.C. and with him P. Hack for the defendants
SOLICITORS: Bain Gasteen for the plaintiffs
Crouch & Lyndon for the defendants
HEARING DATES: 22nd - 24th March 1995
IN THE SUPREME COURT
OF QUEENSLAND No. 364 of 1994
Brisbane
Before the Hon. Justice Fryberg
[Peters & Ors v Kerle & Ors]
BETWEEN:
GUSTAV PETERS, HANS STUTTE AND GREGORY WILLIAM HECK representing themselves and others.
Plaintiffs
AND:
LESLIE B KERLE, BEVAN R WENDT AND KEVIN L KREIS representing themselves and others.
Defendants
REASONS FOR JUDGMENT - FRYBERG J.
Delivered the 24th day of April, 1997
The facts
The township of Marburg nestles at the foot of a range of hills between Ipswich and Toowoomba. The trains no longer run there and the Warrego Highway was rerouted around it years ago. But it was built before the trains and the highway. It was formed on the banks of Black Snake Creek around 1870[1], and many of the folk who settled there were of German extraction. Not surprisingly, many of them were of the Lutheran faith. In 1888, some of those folk came together to establish a Lutheran church. By 1900, they were known as the Lutheran Church at Marburg and had acquired land for the purposes of a church and a cemetery. Later, they changed the name of their church to "Trinity Evangelical Lutheran Church, Marburg". Surprisingly, it seems they had no constitution[2]. Perhaps their views on that subject resembled those once "quoted" by one of a different faith[3]. However that may be, by some mechanism they appointed three members of the congregation to hold their land pursuant to nominations of trustees registered under the Real Property Acts.
[1]Moreton Shire Cultural Heritage Strategy Study, vol 2, 1993-5, pp.26ff.
[2]See item 1 in the index to section C of exhibit 1, where the 1941 constitution is described as the "original" constitution.
[3]"Unhappy Land! where demagogues uprear
Adulterous foreheads, reeking with pollution!
Catching full oft the unsuspecting ear
Of innocence with their villainous elocution;
And eke presenting to the mob each year
A thumping bastard and a Constitution!"
J D Lang: Freedom and Independence (1852), p.266.
By 1941, two of the most recently appointed trustees of part of the land had died. In that year, a meeting of "accredited members of the Trinity Evangelical Lutheran Church, Marburg" was held in the church building. Ten members and the pastor were present. The minutes of the meeting have survived. They record that the meeting adopted a constitution and a set of rules and regulations[4]. It elected office bearers under the constitution and resolved that a corporation be formed under the Religious Educational and Charitable Institutions Act 1861[5] in the name of "The Trinity Evangelical Lutheran Church at Marburg, Queensland". On 22nd August 1941 letters patent under that Act were issued declaring that four named persons "and their successors forever, holding the offices aforesaid, shall be a Body Corporate, by the name and style of the Trinity Evangelical Lutheran Church at Marburg, Queensland". The "offices aforesaid" were pastor, chairman, deputy‑chairman and secretary of the church.
[4]These were accepted as valid by the parties, but compare In re Tobacco Trade Benevolent Association Charitable Trusts [1958] 1 W.L.R. 1113.
[5]That Act was repealed by the Associations Incorporation Act 1981, but letters patent previously issued under it continued as if the latter Act had not been passed: see s.144.
The constitution was set out in para.4 of the minutes. It was divided into 8 sections, lettered A to H. Relevantly, it provided:
"A. CONFESSION. This congregation accepts all the canonical books of the Old and New Testament of the Bible as the inspired and revealed Word of God and as the only source and guide in matters of Christian faith and life. It furthermore accepts, (a) The Three Ecumenical Creeds; (b) Luther's Large Catechism; (c) Luther's Small Catechism; (d) The Unaltered Augsburg Confession and the Apology of the same; (e) The Smalcald Articles; (f) The Formula of Concord of the year 1580 A.D. as the pure and unadulterated interpretation and exposition of the Word and will of God in accordance with which all matters of doctrine and practice must be judged.
B. PASTORAL OFFICE
...
C. ELDERS. The congregation shall elect a Board of Elders consisting of FIVE members who shall hold office for a period of THREE years. The duty of the elders shall be to support the ministry of the Word
a) by helping the Pastor to watch that the members of the congregation remain faithful to the true doctrine;
D. REMOVAL FROM OFFICE.
...
E. MEMBERSHIP. Only such shall hold membership as,
a) are baptized,
b) accept Dr Martin Luther's Small Catechism as the doctrine of the congregation,
c) are not members of any secret, anti-Scriptural society, as Freemason, Oddfellows, Druids, Foresters, etc.,
d) avoid all false churches and alliances,
e) do not live in manifest works of the flesh (Galatians 5, 19-21),
f) diligently make use of the Word of God and the Sacraments as the means of grace,
g) submit to all ordinances of the congregation which are not contrary to the Word of God,
h) consider it their duty to contribute voluntarily towards the maintenance of the Church according to their ability and means.
F. ADMISSION TO MEMBERSHIP. Persons desiring admission into this congregation shall notify the Pastor to this effect. The Constitution shall be submitted to them for acknowledgment. Persons coming from other denominations shall, before being received into membership, show in the presence of witnesses their qualifications according to paragraph E (membership) of this Constitution. Applications for membership shall be announced at a public service.
G. CHURCH DISCIPLINE. All church discipline shall be effected according to Matthew 18, 15-17. Sins which render a member liable to excommunication include all those enumerated in Galatians 5. Such excommunication is valid only when it is evident that such sin has been or is being committed which renders faith and a good conscience impossible and of which the admonished proves himself impenitent in spite of all admonition. A person who has been excluded according to God's Word and Christian order shall be deprived of all rights of a member, shall have no vote, shall no longer receive absolution and the Lord's Supper, and, if he dies impenitent, he shall not receive Christian burial. Should however, such a person repent and desire to be reconciled with the congregation, he shall be gladly readmitted into membership.
H. ALTERATIONS. Paragraphs 4 A, B, D, E and G of this Constitution shall not be repealed or altered."
Apart from the events with which this case is concerned, the constitution has remained unchanged.
The rules and regulations which were adopted included the following:
"a) Only married male members and such male members as have completed their
twentyfirst18th[6] year shall be entitled to vote at a meeting of members on any resolution submitted thereto and such decision shall be the decision of the Church subject to the provisions hereinafter contained.[6]Amended in January 1966.
b) Any member of the said Church affiliating with a sect or denomination or church other than "The TRINITY EVANGELICAL LUTHERAN CHURCH at MARBURG, Queensland," shall forthwith cease to be a member of the said Church.
...
d) The administration and affairs of the said Church shall be conducted and managed in such a manner as the members shall direct by resolution carried at a meeting specially summoned for the purpose of considering such resolutions subject to any provisions hereinafter contained. A simply majority of those members present shall decide. The Chairman shall have also a casting vote.
e) there shall be a common seal in the custody of the Chairman. In the event of absence beyond (3) months from the district, or of insanity, or death, or criminal act of, or in the opinion of a two-third majority of the voting members of misuse of the Church's seal, by the Seal-Bearer, the seal shall be in the custody of the Deputy-Chairman.
f) All real or personal Property now or hereinafter acquired by the said Church shall be held in its corporate name.
...
h) The congregation shall have the right upon its decision at a duly constituted meeting specially called for the purpose to dispose of any real or personal property held under its corporate name subject to any ordinances or regulations under the powers hereinafter contained.
i) The Church as such shall be and remain the beneficial owner of all property held under its corporate name. No individual member or members can at any time make any individual claim upon the assets of the said Church.
j) If at any time a separation on account of doctrine should take place in this Church (which God may graciously prevent), the property of the Church and all the benefits therewith connected shall remain with those members who shall remain true to the confessions of this Church, namely to the doctrines of the Evangelical Lutheran Church, as contained in the Book of Concord of the year 1580 A.D., as expressed in paragraph four of this Church's Constitution.
k) There shall be elected by the members of the said Church the following officers, who shall hold office until their successors are elected, a CHAIRMAN, DEPUTY‑CHAIRMAN, SECRETARY, TREASURER, two AUDITORS. All officers shall be elected annually. Each of the above officers shall carry out such duties as are usually carried out by such officers or as they may be directed to perform by any ordinance or regulation made under the powers hereinafter conferred.
...
l) The Pastor called by the Trinity Evangelical Lutheran Church at Marburg, Queensland, shall during the currency of his appointment be the Pastor of the said Church and succeeding called Pastors shall upon their appointment, ipso facto, become the Pastors of the said Church.
m) Any of the fore-going rules and statutes with the exception of rule 5 b and rule 5 l may be altered or rescinded by the resolution, or resolutions, made and carried by a two-third majority of all voting members of the Church present at a meeting specially called to consider such resolution or resolutions.
n) A general meeting of voting members shall be called for the purpose of making by-laws or regulations for regulating the internal affairs of the congregation and for such other purposes as may be deemed necessary, but no by-law shall be formed or be of any force which conflicts with the foregoing rules and regulations. Also all previous resolutions of the congregation conflicting with this present document are herewith rescinded."
The next part of the story is unclear. At some time (it may even have been before 1941) the congregation or its members individually became associated with a body called the Evangelical Lutheran Church of Australia Inc ("ELCA"). How, when, where or why this occurred was not put into evidence. It seems that ELCA was incorporated under the Associations Incorporation Act 1956 of South Australia, or its predecessor. It was described from the bar table as an "umbrella organisation". Presumably it had a constitution or rules of some sort, but they are not before me.
In the 1960s, it was not the only umbrella organisation for Lutherans in Australia. Another body, also incorporated under the South Australian Act (or its predecessor) existed, called the United Evangelical Lutheran Church of Australia. It seems that during the first half of the 1960s, there were moves for the two organisations to amalgamate. By mid‑1965, these moves were well advanced. A document of union had been prepared as the basis of affiliation between the two organisations and at individual church level, a "declaration of pulpit and altar fellowship" was proposed. At a meeting of the Marburg congregation on 20th June 1965 the following resolution was passed:
"Resolution Concerning Declaration of Fellowship with UELCA
Whereas it is desirable that this congregation join in fellowship with the UELCA at the same time as the other congregations of the ELCA, if it can do so with a good conscience; but whereas not all matters relating to the proposed union have as yet been finally settled: namely:
a) The document of union does not settle the important question of whether membership in the Lutheran world federation is contrary to Gods word, as we have always maintained (CP document of union par 15);
b) The document of union itself, the very basis affiliation between the ELCA and the UELCA has not been finally clarified, so that we can not know at this stage precisely what the final version will be; and
Whereas we can not be expected to bind ourselves unconditionally in advance to a fellowship which could later prove to be against our conscience; therefore
Be it resolved:
A) that this congregation hereby express its willingness to participate in the declaration of pulpit and altar fellowship with the UELCA in the first Sunday of Advent in 1965 unless or until it can be shown that the UELCA at that time still differs from us in doctrine or practice (CP document of Union par 6 but with the clear understanding that such fellowship is dependent upon
1. The UELCA having severed:
a) its membership in the Lutheran world federation,
b) its overseas fellowships (as specified in the document of union).
2. The final form of the document of union in par 7-8 safeguarding the scriptural principle that there can be "no continued cooperation in the preaching of the gospel and the administration of the sacraments" with heterodox church bodies as such.
B) that, with the reasonable hope that the above conditions of our fellowship shall be met, we authorise our pastor to plan for a festive service together with neighbouring congregations of the UELCA and make necessary plans and arrangements consistant [sic] with the above resolution."
Apparently, the doubts referred to in that resolution were resolved for on 8th November 1965 the congregation resolved "that Pastor Grieger be authorised to go ahead and make plans for a joint service between ELCA and UELCA on 28 November 1965".
Moves for union continued during 1966. In May that year, a special convention of the Queensland District of ELCA was held at Toowoomba. Pastor Grieger (the pastor at Marburg) and Messrs Voss and Wendt (two elders of the Marburg congregation) attended as delegates. The main business of the convention was Lutheran union. The convention resolved:
"13.That we, the Synod of the Queensland District of the ELCA, record our heartfelt thanks to God that altar and pulpit fellowship has been established between the two Lutheran Churches in Australia, and that preparations are under way for the amalgamation of the two Churches as soon as possible."
The convention also passed resolutions relating to the location of the headquarters and seminary of the new church in Adelaide and authorising various financial arrangements for the new church. The councils of the two existing church bodies were authorised "to make decisions in the name of the respective Churches which are necessary to prepare for and proceed with the constituting convention of the uniting Churches or on matters on which further planning is essentially dependent"[7].
[7]Synodical Report of the Special Convention of the Queensland District of ELCA at Toowoomba, resolution 24.
It is evident from the report of the convention that the proposed union had excited some disharmony in and resignations from ELCA. Perhaps as a gesture toward the rebels, the convention resolved to adopt a statement called the "Declaration and Plea"[8]. There was also tabled, but not adopted, the following Declaration:
[8]Ibid, resolution 5.
"The Pastoral Conference[9] had suggested that the Convention recommend to all congregations of the District that they insert into their own constitutions the following DECLARATION (possibly to be located next to the paragraph on "Confession):
[9]The Pastoral Conference was apparently the meeting of the pastors of the District.
In view of the confusion caused in Lutheran Churches by men teaching errors and permitting false practices in the name of "Scripture and the Confessions", this congregation is determined faithfully to confess Christ and His Word (Matt. 10: 32,33) clearly and specifically against the twin errors of our times: theological liberalism and false ecumenism. To this end we solemnly declare that the "Declaration and Plea" adopted by the special convention of the ELCA, Queensland District, on May 7th, 1966, is fully Scriptural and is therefore our own Declaration and Plea, and as such shall appear in connection with this constitution as an Appendix."
The national constituting convention foreshadowed at the Toowoomba meeting was held at Tanunda in South Australia from 29th October to 2nd November 1966. Immediately before it took place the closing convention of ELCA was held. Pastor Grieger and two members of the Marburg congregation were delegates to both conventions. Concurrently with the ELCA closing convention, UELCA held its closing convention. Both closing conventions passed identical resolutions described as "required under schedule No. 18 of the Associations Incorporation Act", plainly a reference to the Associations Incorporation Act 1956 of South Australia[10]. That Act provided:
[10]The reference was to form 18 in the regulations made under that Act.
"28. (1) Any two or more incorporated associations may by resolution of all of the associations passed in accordance with the rules of each association respectively, become amalgamated together as one association without any division of the property of the associations."
They also resolved to adopt rules for the new corporation.
Whatever formalities were necessary to complete the amalgamation were apparently attended to promptly, for the consummation of the union was the constituting convention to which I have already referred. It took place pursuant to the new rules. The first action of the convention, possibly superfluous, was to adopt those rules as the constitution of the Lutheran Church of Australia ("the LCA"). The report of the convention records that adoption and continues:
"A.1. The Congregations and the Ministry of the Church
As it is proposed that the present congregations and pastors of the two amalgamating Churches should be regarded as the congregations and pastors of the new Church at its establishment, without the necessity of any formal application on their part, rolls are being prepared for official certification.
...
15.Official Roll of Congregations
RESOLVED That the congregations of The Evangelical Lutheran Church of Australia and of The United Evangelical Lutheran Church in Australia, as listed and certified by the respective Churches, be recorded on the official Roll of Congregations of the Lutheran Church of Australia under the provisions of Article IV Clause 2 of the Constitution.
16. Official Roll of Pastors.
RESOLVED That the pastors of The Evangelical Lutheran Church of Australia and of The United Evangelical Lutheran Church in Australia, whose names have been listed and certified by the respective Churches, be recorded on the official Roll of Pastors of the Lutheran Church of Australia under the provisions of Article V Clause 2 of the Constitution."
The roll of congregations referred to in those resolutions included "Marburg, Trinity" under the sub-heading "Queensland District". The roll of pastors there referred to included Pastor Grieger.
The constitution as then adopted is still, with relatively minor amendments, the constitution of the LCA. I shall return to it later.
The next relevant step was the constitution of the Queensland District of the LCA. To this end a convention was held at St. Peter's Lutheran College from about 3rd December to 5th December 1966. Marburg was represented by Pastor Grieger and by Messrs Kerle and Voss. The convention resolved to adopt a constitution and by‑laws of the District and to apply for incorporation under the Religious Educational and Charitable Institutions Act 1861 by the name "Lutheran Church of Australia, Queensland District". Pastor Grieger was elected to the St. Peter's College council, a post which was, it seems, in the gift of the LCA.
Back in Marburg, these developments evidently gave rise to some disquiet. The church records disclose that what was described as "a short meeting" was held after divine service on 19th March 1967. At that meeting a motion was moved and seconded that the following clause be added to the constitution:
"This congregation shall be affiliated with the Lutheran Church of Australia so long as the said church remains faithful to the doctrine of the Evangelical Lutheran Church as specified in Article above. If it should ever become evident (which God may graciously prevent) that false doctrine is being tolerated in the said church, or in churches with which it is in fellowship, so that brotherly admonitions go unheeded, then this fellowship shall be terminated."
There is nothing in the minutes of the meeting to indicate that this resolution was carried, but counsel for the applicants conceded the passage of the resolution in argument.
At the same meeting, it was also resolved that the following clause be added to the constitution:
"In view of the confusion caused in Lutheran churches by men teaching errors and permitting false practices in name of "Scripture and the Confessions", this congregation is determined faithfully to confess Christ and his word (Matt.10; 32-33) clearly and specifically against the twin errors of our times: theological liberalism and false ecumenism. To this end we solemly [sic] declare that the 'Declaration and Plea' adopted by the special convention of the ELCA Queensland District on May 7th 1966, is fully Scriptural and is therefore our own Declaration and Plea, and as such shall appear in connection with this constitution as an appendix."
This was substantially the clause recommended in the resolution tabled but not adopted at the ELCA convention 10 months earlier.
It will be observed that the resolutions of March 1967 were that clauses be "added to the constitution". It was not resolved that those clauses be "inserted" in the constitution, let alone that they be inserted at any particular point in the constitution. That has some significance, since the resolution tabled at the ELCA convention had specifically referred to a possible location. In the absence of any specification in the resolutions of where they were to be added, it might be thought that their natural construction required that they be added at the end of the constitution. That was not the view taken by someone at the Marburg Church. A copy of the constitution was reprinted, and in it, a number of changes were made. First, sections B through to H were relettered as sections C through to I. Second, the text of section I was altered to conform to the relettering. Neither of these changes had the authority of any resolution of the congregation. Third, a new section B was created, headed "AFFILIATION" and the resolution of March 1967 dealing with that topic was inserted under it; but a change was made to the text of the resolution by inserting the letter "A" after the words "as specified in Article". No authority was ever given by the congregation for that change. Fourth, the existing section A was numbered with the numeral "1" and the other resolution of March 1967 was inserted in that section and numbered "2". Finally, a document, said to be the Declaration and Plea, and labelled "Appendix" was annexed to this edition of the combined constitution, rules and other resolutions.
The substantive effect of those changes as printed was twofold. First, the clause adopting the Declaration and Plea appeared to gain the protection of the old section H (the immutability clause). There is nothing in the resolution of the congregation to show that this was intended. Second, the sense of the affiliation resolution was changed. Whereas previously the "article" referred to was fairly obviously the resolution adopting the Declaration and Plea, in the new edition the reference appears to be to the whole of the new section A[11].
[11]This caused some embarrassment in relation to the defendants' pleading, a matter referred to below.
In 1970 the first of these constitutional changes excited the attention of the constitution committee of the Queensland District of the LCA. A letter from the secretary of that committee to the congregation at Marburg drew attention to problems which the constitution could cause. It is obvious from the terms of the letter that the committee was referring to the reprinted version. That evoked a prickly response from Pastor Grieger, advising that the secretary's letter had been considered only by the elders and not by the congregation, since in the elders' view, the congregation were not expecting such a letter. The response asserted that the Declaration and Plea was correctly positioned in section A[12] and was intended to bind the Pastor. It was asserted that the Declaration and Plea rejected "a number of modern errors" and the belief was expressed that it added nothing new, but simply prevented something new being introduced. The response accepted the proposal in the committee's letter that the issue be left in abeyance. Thereafter, it was apparently ignored for a number of years.
[12]Although in fact, it was an appendix.
From 1966 until about 1991, Pastor Grieger and the Marburg congregation regularly participated in the life of the LCA. Delegates attended synods and conventions, and the pastor attended pastoral conferences. The congregation contributed financially to the funds of the LCA. Pastor Grieger accepted a loan from an LCA support organisation to buy a car and the congregation contributed to the LCA's pension fund to provide him with superannuation. The church property was insured with the LCA Provident Fund. At no stage in this period was it suggested that the Marburg congregation did not have membership of the LCA.
But all was not well in relations between Pastor Grieger and his elders on the one hand, and the LCA on the other. There was an acrimonious correspondence between them in 1990, but nothing much seems to have come of it. The dispute was largely over theological matters, but seems not to have been uncoloured by the fact that Pastor Grieger's brother Mr Clem Grieger (who was also a pastor) was suspended by the LCA from the Ministry.
Friction again developed between the LCA and the Marburg officials in the first part of 1992. The annual convention (synod) of the Queensland District of the LCA took place on 4th-5th May that year. The elected delegate representing the Marburg congregation was Mr Clem Grieger. Pastor Grieger himself attended in his pastoral capacity. Three matters at the convention seem to have aroused Mr Clem Grieger. First, the president of the Queensland Division urged members to refrain from joining and to disassociate themselves from an organisation called "Chapter One Lutherans" on the ground that it had a faith basis different from that of the LCA. In subsequent correspondence, the president spelled out his point that no documents other than those specified in the constitution of the LCA could have confessional status or be described as such in the constitution of a church of the LCA. The documents specified in the "Confession" section of the constitution of the LCA were identical with those in the original section A of the constitution of the Marburg congregation, but did not include the clause adopting the Declaration and Plea purportedly added by that congregation in March 1967.
The second matter was the decision of the synod that the LCA should join an organisation called "Queensland Churches Together". This was an organisation of churches of various denominations aimed at fostering Christian unity and in particular enabling member churches (inter alia) "to find ways to worship together, while respecting each church's disciplines, doctrines and traditions". Mr Clem Grieger later explained his views on this topic, in his report to the Marburg congregation of June 1992, and described the proceedings at the synod as follows:
"Note the aims in 3.1.
'find ways to worship together'.
Can you imagine worshiping together here at Marburg with the Roman Catholics, the Church of England, the Uniting Church people as if nothing was amiss? How long will it take before other congregations (with whom we are in fellowship) do this sort of thing! Or how long will it take before our young people start worshiping at 'together' services in the buildings of other denominations and become lost to them!
I believe that this may not be intended tomorrow but clearly cannot be kept off of the agenda in the future. I believe this to be false ecumenism which our constitution condemns.
Note also the aims in 3.1.
'While respecting each Church's disciplines, doctrines and traditions'.
While you may respect the people who hold false teachings you can never respect the false teachings themselves. If we are going to teach the truth, we must by necessity condemn error and false teachings. This is not respecting. You cannot have your cake and eat it.
Time was allowed for debate (expression of views) and some of the things that were pointed out against joining were:
The bible says, 'Mark those which cause divisions and offences contrary to the doctrines which yea have learned and avoid them.'
The QCT constitution demands that we respect the false doctrines of other churches, this we simply cannot do.
What will happen to congregations who for conscience sake cannot have anything to do with QCT.
The main thrust of views expressed in favour of joining were basically:
If we join this will provide opportunity to share our faith with them.
etc. ....
No attempt was made to answer any of the challenges or questions raised by those who spoke against joining QCT."
The third matter was the failure of the synod to deal with two resolutions proposed by the Marburg congregation. Mr Grieger later described the synod's treatment of those resolutions as "contemptible and insulting to the congregation".
Things were stirring in other Lutheran churches also. In early June 1992, Pastor Grieger received a letter from the secretary of St John's Lutheran Church, Aubigny, announcing the adoption of resolutions by that church to "solemnly reject fellowship with the officials of the LCA" and to establish a separate Lutheran church, to be called the Australian Evangelical Lutheran Church, on 19th July 1992. Similar letters were sent to several other congregations. Enclosed with that letter were a number of pro forma resolutions, in particular resolutions asserting that the congregation had never formally accepted or agreed to the constitution and by‑laws of the Lutheran Church of Australia, and resolving that membership in the LCA was not possible. The letter also enclosed a document entitled "Evidences of false doctrine being tolerated in LCA". These included failing to suppress discussion of ordination of women; condoning women taking leading parts in public worship and allowing them to become elders; and condoning joint worship between churches not in doctrinal agreement and respecting errors of other churches in the organisation Queensland Churches Together.
Thereafter, events moved quickly. On Sunday 7th June, a meeting at Marburg adopted two of the standard resolutions (aimed at pre‑empting the suspension of a pastor and at congregational autonomy) enclosed with the letter from Aubigny. A special meeting was called for Sunday, 21st June. It does not appear from the material how members of the congregation were given notice of the business for these meetings. Forty-two members were present on 21st June. Also present was the president of the Queensland District of the LCA, Pastor Vitale. After much discussion, resolutions in the following terms were passed by 28 votes to 14:
"BE IT RESOLVED that our congregation sadly recognises that according its constitution and for reasons stated above, membership in the LCA is not possible.
BE IT FURTHER RESOLVED that we accept the invitation of the Aubigny congregation to join with it in forming a new truly confessional Lutheran Church which will safeguard the autonomy of the congregation."
Four days later, Pastor Grieger wrote to Mr Vitale in his capacity as president requesting that his (Pastor Grieger's) name be removed from the list of pastors of the LCA as from 30th June 1992. He added that he trusted that all his entitlements in the form of cash/loan superannuation benefits would be respected. The LCA treated that letter as a resignation and accepted it.
On 28th June, a number of members of the Marburg congregation wrote to the secretary of the Queensland Division of the LCA complaining (inter alia) that the meeting of 21st June was announced without any clear notice of the main agenda item. Thereafter, the LCA appointed a new acting pastor and the congregation divided into two camps. Separate church services were held. Disputation developed about the use of church funds and particularly about the use of church property. Solicitors were engaged and positions adopted. By 4th November the elders had removed the names of those whom they described as "ex‑members of the Trinity Lutheran Church, Marburg" from the list of members, citing in support section E(g) of the constitution and rule 5(b)[13]. Locks were allegedly changed on the church building and those loyal to the LCA are alleged to have been excluded. At the Annual General Meeting on 31st January 1993, the following resolution was listed, and, I assume, passed:
[13]Inexplicably, the plaintiffs denied on the pleadings that this occurred. I reject that denial on the basis of an inference from a letter dated 4th November 1992 signed by the elders, and from the conduct of the plaintiffs' case.
"Since the constitution of the Trinity Lutheran Church Marburg makes it clear that members of the congregation are required to submit to all ordinances of the congregation which are not contrary to the Word of God, (F.g.),
but since a number of members of the congregation refused to accept and abide by the resolution of the congregation not to be a member of the Lutheran Church of Australia; and
since the constitution expressly states that any member of the said Church affiliating with a sect or denomination or church other than 'THE TRINITY EVANGELICAL LUTHERAN CHURCH at MARBURG, QUEENSLAND' shall forthwith cease to be a member of the said church.' (5.b.),
and since certain members not only continued to retain membership in the LCA, but even elected their own office bearers in opposition to the duly elected officers of the congregation, and invited the services of a pastor in opposition to the duly called pastor of the congregation,
this congregation hereby endorses the action taken by officials in notifying those members that they could no longer be members of the congregation, and subsequently removing their names from the list of members."
In the meantime, the "ex-members" group applied to the LCA for an adjudication pursuant to the constitution of that body and an investigating committee chaired by Mr M D Kriewaldt was appointed. The elders' group refused to have anything to do with the committee. It reported its findings in favour of the complainants in March 1993. Not surprisingly, those findings were rejected by the elders' group in a letter from their solicitors dated 5th April 1993. After protracted correspondence between solicitors, the present proceedings were commenced on 15th March 1994. Representation orders were made and interim orders regarding the use of the church property (or undertakings in lieu of orders) have been in place since that time.
The parties
Every living person who was a member of the congregation of the Marburg church prior to June 1992 is either a party to this action or is represented pursuant to the representation order: so I was assured by counsel. The plaintiffs are the LCA group. The defendants are the elders' group. Pastor Grieger is not a party; the corporation called the Trinity Evangelical Lutheran Church at Marburg, Queensland is not a party; and the LCA is not a party. Despite some discussion about parties during the course of the hearing, there has been no application to add any of those persons to the proceedings.
The proceedings
The course of the proceedings was unusual. No oral evidence was called. There were five documentary exhibits tendered by agreement. Exhibit 1 consisted of two arch lever volumes of documents spanning the relevant period. It was supplemented by exhibit 5. Exhibit 2 was the handbook of the LCA. Exhibit 3 was a statement by Pastor Grieger and exhibit 4 was a statement of mutually agreed admissions of both fact and law. At the outset I was invited to proceed as though the matter were a chamber application. That was how the matter proceeded. No doubt there were, from the parties' point of view, good reasons for this. It has, however, complicated the process of fact finding. A number of documents were insufficiently identified and some were not referred to by counsel in their addresses. I have generally ignored such documents in reaching my conclusions. The extent to which I was entitled to draw inferences from documents was unclear. Hearsay in documents was agreed to be admitted as evidence of its truth except where contained in controversial correspondence. The exception has not been easy to apply. My request that I be provided with a chronology was not met. I have done the best I can to find the facts on the available material, but the process has been unsatisfactory.
There was also a degree of fluidity in the definition of the issues to be litigated. While the pleadings were the starting point of this process, they certainly did not enable its completion. In the course of the hearing the plaintiffs withdrew reliance upon paras. 9.1, 9.2, 12-15 and 18 of the statement of claim. As the argument developed, it became apparent that para. 5.1 of the statement of claim was a source of difficulty. That paragraph provided, "From 1966 the congregation was a member of the LCA". One problem was dealt with by a ruling in the course of the hearing and it is unnecessary to canvass that problem again. Another was whether the paragraph was to be read as meaning that individual members of the congregation were members of the LCA or that the congregation as an unincorporated association was a member. It is apparent from the defence that the latter meaning was the one assumed by the defendants. When the argument began, Mr Sofronoff QC submitted on behalf of the plaintiffs that the individual members of the congregation were members of the LCA and at first seemed to contest the correctness of the proposition that the congregation as an unincorporated association was a member. Perhaps this attitude was influenced by para. 4.1 of the amended defence, where the defendants pleaded that the Associations Incorporation Act 1956 did not provide for or permit persons or bodies other than individuals to be members of an incorporated association formed under that Act. When it was pointed out to counsel for the plaintiffs that the relief sought in para. (iv) of the prayer for relief did not relate to individual members, an intention to apply for leave to amend was announced. Later, however, that intention was abandoned. The defendants did not contend that the plaintiffs were unable to rely upon both approaches.
The form of the defence also gave rise to problems. In para.4.3, the defendants pleaded that on 19th March 1967, the congregation resolved in terms which were quoted in that paragraph. The quoted terms were those of the "affiliation clause" the terms of which I have already set out[14]. That plea, strictly speaking, was inaccurate. The resolution was that a clause in those terms be added to the constitution. Nothing hangs on that inaccuracy. However in the body of the quotation of the clause in para.4.3 it was pleaded that the words "as specified in Article" referred to para.A of the constitution of the Marburg congregation. In the course of argument, it became apparent that this assertion gave rise to difficulties for the defendants. On the last day of the hearing, the defendants sought and were granted leave to amend the defence by substituting an allegation that those words referred to the first resolution adopted at the meeting on 19th March 1967. Leave was also given to make a similar amendment to para.4.4 of the defence. Despite the grant of leave, these amendments have never been made, notwithstanding counsel's express assurance that they would be made. Consequently, the leave to amend has ceased to have effect pursuant to O.32 r.8 of the rules of this Court. Doubtless these derelictions might be cured if an appropriate application were made; but they reflect the unsatisfactory nature of the procedure in this case.
[14]See page 10 above.
The relief sought by the plaintiffs on their own behalf and on behalf of the persons they represent was:
"(i)A declaration that on and immediately prior to 21st June 1992 the conduct and affairs of the congregation of members of The Trinity Evangelical Lutheran Church at Marburg, Queensland, and further of a body corporate pursuant to The Religious Educational and Charitable Institutions Act 1862 (Qld), namely The Trinity Evangelical Lutheran Church at Marburg, Queensland, were governed and regulated by the Constitution and By-laws, as promulgated from time to time, of The Lutheran Church of Australia, a body corporate;
(ii)A declaration that purported resolutions of the congregation on 21st June 1992, whereby certain members of the congregation purported to withdraw the congregation from membership of the said Lutheran Church of Australia, were void and of no effect;
(iii)A declaration that the plaintiffs and the persons they represent are the members or alternatively are members of the congregation;
(iv)A declaration that the congregation is a member of the said Lutheran Church of Australia;
(v)An injunction restraining the defendants, and the persons represented by them, from interfering with or preventing the plaintiffs and persons represented by them, from obtaining access to, using and dealing with, as members of the congregation, land and buildings the property of the congregation, and held by the said body corporate, namely The Trinity Evangelical Lutheran Church at Marburg, Queensland, on trust for the congregation."
Paragraphs (i), (ii) and (iv) of the prayer concern the relationship between the Marburg congregation and the LCA. Paragraphs (iii) and (v) of the prayer concern the relationships of the parties inter se, although the plaintiffs did not press for an order that only they were the members of the congregation. In connection with the former relationship, the issues are whether the Marburg congregation, either individually or collectively, ever acquired membership of the LCA; and if so, whether it effectively terminated that membership[15]. Questions relating to standing are more conveniently considered after these issues are resolved.
[15]On the plaintiffs' submissions, these were the only issues in the case.
Individual membership of the LCA
The plaintiffs submitted that the delegates to the 1966 constituting convention in Adelaide were impliedly authorised by each member of the Marburg congregation to make him or her a member of the new corporation; that this was what the delegates attempted to do; and that the attempt was successful. Alternative arguments based on ratification and estoppel were also advanced. It was argued that by this process, all who were members of the Marburg congregation on the relevant date became members of the LCA, and all who joined the Marburg congregation subsequent to that date automatically became members of the LCA.
There are many formidable obstacles in the way of this argument. There is no suggestion that the Marburg delegates ever had express authority from each individual member of the congregation. Rather it was contended that such authority was to be implied from the circumstances. The absence of detailed evidence regarding the circumstances makes such an implication extremely problematical. It appears from exhibit 3 that the congregation approved whoever volunteered to go to the convention and took it for granted that Pastor Grieger would attend; but there is no evidence of the scope of the powers given to the delegates and nothing was advanced to show that their conduct ought to be regarded as binding upon members of the congregation who either had nothing to do with their appointment or who may have voted against it. If their conduct at the convention were indicative of their acting as agents for all the members of the congregation for the time being, that might be evidence from which an inference could be drawn; but there is no such conduct discernible in the material. In the end I need not decide this issue. I mean no disrespect for the careful and forceful arguments advanced on behalf of the plaintiffs; but it seems to me quite plain that the constitution and by-laws of the LCA do not, and never did, envisage that individuals would be members of that body.
Article IV of the Constitution as adopted provided:
"ARTICLE IV. MEMBERSHIP
1.The membership of the Church shall consist of congregations which
(a)accept and hold the Confession of the Church;
(b)accept the Constitution and By-laws of the Church;
(c)submit a Constitution acceptable to the Church;
(d)undertake to participate in the work of the Church and to promote its Objects;
Such member-congregations shall be recorded in the official Roll of Congregations.
2.At its organization the Church shall consist of the existing congregations of The Evangelical Lutheran Church of Australia and of The United Evangelical Lutheran Church in Australia.
3.Membership in the Church may be terminated by action of the congregation or by action of the Church, as prescribed by the By-laws.
4.A congregation which terminates its membership, or whose membership is terminated by action of the Church, shall have no claim upon the Church or the property or funds of the Church; but nothing herein contained prevents the Church from giving effect to any decision, award, or recommendation made by any Church tribunal in accordance with the By-laws in consequence of any such termination of membership."
Section 2 of that Article was subsequently deleted. "Congregation" was defined to mean "a group of persons adhering to the Lutheran faith who regularly meet for the administration of the Means of Grace and who have constituted themselves as an organised body by the adoption of a constitution". The by-laws, adopted at the same time, provided for an official roll of congregations, for the reception of a congregation into membership of the LCA and for a congregation to withdraw from membership. There was no other provision whereby individuals could become members, nor any provision whereby they could cease to be members. No provision required the LCA to be notified of the names of members of congregations, a surprising omission if they were to be regarded as members of that body.
The events which occurred at Tanunda in 1966 are also inconsistent with the view that the delegates to the constituting convention were intending to enrol individuals as members of the LCA. What occurred was a merger of two incorporated associations under s.28 of the Associations Incorporation Act 1956. The preamble to the constitution of the LCA recites:
"We, the pastors and the members of the congregations which comprise the Evangelical Lutheran Church of Australia, and the pastors and the members of the congregations which comprise the United Evangelical Lutheran Church in Australia, severally and jointly do solemnly declare... ".
That makes it clear that the two amalgamating corporations were comprised of congregations. Individuals had their roles as either pastors or members of the congregations.
In my judgment the constitution of the LCA does not envisage membership by individuals, and those attending the constituting convention in 1966 did not purport to make individuals members of the LCA. In this respect, I must reject the plaintiffs' submissions.
Congregations as members of the LCA
The primary argument advanced on behalf of the defendants in relation to congregational membership was that an unincorporated association could not, as a matter of law, be a member of an association incorporated under the Associations Incorporation Act 1956. On their behalf, Mr Harrison QC argued that this consequence followed as a matter of interpretation of the Act. The Act made surprisingly little provision in respect of membership. It provided that the registration of an association "shall render it and the members thereof for the time being" a body corporate[16]. It also provided that no member of the association should as such member be under any personal liability to any creditor of the association except as expressly provided in the rules or trust deed of the association[17]. An association was not empowered to secure a profit directly or indirectly to its members[18]. A member of an association was authorised in certain circumstances to apply to the local court for an order prohibiting the association from transferring its property, and the relevant provision seems to have envisaged that a member was capable of voting[19]. These provisions seem to me fairly neutral in relation to the question whether unincorporated associations might have been members of an association incorporated under the Act.
[16]Section 12(1).
[17]Section 29.
[18]Section 21(2).
[19]Section 22(3).
It is relevant also to have regard to the definition of "association". That definition is quite wide, including (inter alia) any religious body and any association for the purpose of recreation or amusement. Such bodies could easily include "umbrella" associations commonly found in Australia to facilitate the co‑operation at State or Federal level of a number of associations themselves locally or district‑based[20]. The Associations Incorporation Act 1956 was a remedial Act and in my judgment, it should not be given a narrow construction.
[20]Compare, for example, the associations involved in Re Maggacis, unreported, Supreme Court of Queensland (Thomas J.), 30th June 1993; Grujevsri v The Illawarra Soccer Association Ltd, unreported, Supreme Court of New South Wales (Bryson J.), 5th April 1990.
It was implicit in the defendants' submission that the definition of association in the Act could not encompass an unincorporated association whose members were confined to other unincorporated associations. Indeed Mr Harrison submitted that such a thing was a concept unknown to law. That submission was based on the proposition that an unincorporated association can exist only by reason of a contract binding on its members. An unincorporated association could not as such make such a contract, either with another unincorporated association or with an incorporated association. I am not sure that this proposition is correct; but even if it is, I do not think that the existence of a legally binding contract among the members of an association was a precondition for the incorporation of the association under the Act. Such a contract might provide the necessary nexus between the association and its members, but some form of common consent other than a contract might also have provided that nexus[21]. It is unnecessary to consider the extent to which the Court would enforce the rules of such an association in the absence of contract - that must depend very much upon the terms of the relevant legislation[22]. In my judgment, the Associations Incorporation Act 1956 did permit unincorporated associations to be members of an association incorporated under it.
[21]Nurses Memorial Centre of South Australia Inc. v Beaumont (1987) 44 S.A.S.R. 454 at p.467.
[22]Compare Stanham v National Trust of Australia (N.S.W.) (1989) 15 A.C.L.R. 87 at p.90.
If that view be incorrect, there is another answer to the defendants' submission. By their pleading, the defendants admitted that at all material times the LCA existed in Australia as a body corporate pursuant to the Act. A certificate of incorporation was issued in respect of it. The Act was repealed by s.4 of the Associations Incorporation Act 1985, but that Act also provided:
"4. (2) Every association that was, immediately before the commencement of this Act, an association incorporated under the repealed Act shall, on the commencement of this Act, be deemed to be an association incorporated under this Act, and the rules of the association under the repealed Act shall, subject to alteration under this Act, be the rules of the association as registered at the commencement of this Act."
The 1985 Act seems clearly to envisage that unincorporated associations may be members of an incorporated association. That appears from the definitions of "member" and "association"[23]. It follows that it is not open to the defendants on the pleadings as they stand to argue that unincorporated associations cannot validly be members of the LCA. The defendants expressly declined to seek any amendment to deal with this problem.
[23]See s.3.
Given that the Marburg congregation could have become a member of the LCA, the next question is, did it do so? The evidence is overwhelmingly in favour of an affirmative answer. The resolution of 24th June 1965 displayed a state of mind in the congregation which was cautiously favourable to the union movement. Pastor Grieger and two elders attended the convention of ELCA on behalf of the congregation in May 1966 when resolutions favouring union were passed, and there is no suggestion that the Marburg congregation did not support those resolutions. A similar delegation from Marburg attended the closing convention of ELCA at Tanunda and apparently joined in pro-union resolutions, one of which in particular resolved that the congregations of the ELCA be recorded on the official roll of congregations of the LCA. That was done, and until the present dispute erupted, there was no objection to this from the Marburg congregation. Thereafter, the congregation recognised its membership in the resolution of 19th March 1967 (I do not think the use of the term "be affiliated with" instead of the term "be a member of" has any significance) and continued to participate in church life in the manner described above. Possibly the fact that the congregation was one of those which comprised ELCA was sufficient under the Associations Incorporation Act 1956 to make it a member of the LCA automatically upon the amalgamation becoming effective. Even if this were not so, the evidence compels the finding that the Marburg congregation was made a member by the actions of its delegation at Tanunda.
The defendants argued that even if the Marburg delegates intended to produce this result, they failed to do so because they did not comply with Article IV clause 1 of the constitution of the LCA. On this argument, paragraph (c) of that clause required the congregation to submit a constitution acceptable to the LCA, and the Marburg congregation had never done this. Indeed, as was pointed out, the constitution of the Marburg congregation was subsequently found to be unacceptable to the LCA. This argument sought no comfort from the subsequent deletion of clause 2 from Article IV; the submission was that compliance with both clause 1 and clause 2 was necessary in the first place.
In my judgment, both clause 1 and clause 2 were independent foundations for membership of the LCA. The interpretation of a document such as this is largely a matter of impression. No cases were cited to me which would bear upon the question of interpretation. It may be that clause 2 could not, without the assent of the Marburg congregation by its delegates have been effective to make that congregation a member of the LCA[24]. With that assent, there is no reason why that clause should not have operated according to its terms. The fact that it was intended so to operate appears from the recital to resolutions of the constituting convention quoted above. In my judgment it was unnecessary for the congregation to comply with clause 1 in order to become a member of the LCA.
[24]Nurses Memorial Centre of South Australia Inc. v Beaumont (1987) 44 S.A.S.R. 454.
In the course of argument, the defendants submitted that the constitution of the LCA was inconsistent with that of the Marburg congregation. If that submission were correct, it would indeed be difficult to find that the Marburg congregation became a member of the LCA at the time of its foundation, particularly if the inconsistency were with one of the immutable paragraphs of the Marburg constitution. That argument emerged "on the run" (as Mr Harrison admitted) and the plaintiffs objected that it was not raised on the pleadings. I do not think the submission demonstrated any substantial inconsistencies. Nor do I think it is my function to scrutinise the constitution and rules of the LCA for other inconsistencies, particularly since the question whether an arrangement prescribed by one form of words is inconsistent with one prescribed by another form of words might involve issues of fact. I reject the argument.
Termination of membership of the LCA
In the alternative, the defendants submitted that the LCA membership of the Marburg congregation had been validly terminated. Implicitly accepting that any such termination must have occurred in accordance with both the constitution of the LCA and that of the Marburg congregation, they sought to demonstrate how both constitutions had been complied with.
Termination under the constitution of the LCA
I have already set out the relevant constitutional provisions. Article IV expressly provided for termination by action of the congregation as prescribed in the by-laws. By-law IV clause 3 provided:
"Withdrawal From Membership
3.A congregation may withdraw from membership in the Lutheran Church of Australia by adopting the following procedure:
(a)The resolution indicating desire to withdraw must be adopted at a legally constituted meeting of the congregation by a two-thirds majority of the voting members, and shall be submitted to the President of the District within fourteen (14) days of adoption.
(b)The President of the District or his appointed representative shall negotiate with the congregation for at least ninety (90) days after receipt of the resolution.
(c)After such negotiation the formal and final vote shall be taken at a legally constituted meeting of the congregation, the purpose of which has been published and at which the President of the District or his representative shall be present.
(d)If the vote to withdraw is in the affirmative, a copy of the resolution shall be forwarded to the President of the District, and upon its receipt by him the membership of the congregation in the Lutheran Church of Australia shall terminate. The President shall forward notice of withdrawal to the Secretary of the Church, who shall publish it in the official organ of the Church.
(e)In the event of a group of members of the congregation resolving to remain in membership with the Church, the question of any equitable distribution of property rights shall be referred to the judicial system of the Church."
The defendants submitted that the resolutions of 21st June 1992 satisfied the requirements of para.(a) of that provision. Those resolutions were passed by 28 votes to 14, with no abstentions recorded. However the defendants admit that this did not constitute a two-thirds majority of persons eligible to vote at the meeting. Did it constitute a two-thirds majority of the "voting members" within the meaning of the LCA constitution?
That constitution gives little guidance as to the proper interpretation of the expression "voting members". "Members" clearly refers to members of the congregation in question, but the LCA constitution does not purport to deal with matters connected with voting at congregational meetings. Mr Harrison submitted that the expression was short for "members present and voting" and served to exclude abstainers from the count. He submitted that "members entitled to vote" could have been used if that was the meaning intended. Neither he nor Mr Sofronoff cited any authority on the expression, and because the internal affairs of congregations are not generally dealt with in the LCA constitution and by-laws, there is little guidance in the context of clause 3. However the clause does not operate in a vacuum. It operates in relation to congregations whose internal affairs are left to the particular congregations. It takes those congregations as they are. While the meaning of the expression in the LCA constitution cannot be controlled by the Marburg constitution, the latter is I think a relevant consideration to take into account as part of the factual matrix within which the LCA constitution must be applied.
Clause (a) of the rules and regulations of the Marburg congregation limits entitlement to vote at a meeting of members to those members who are either married males or males over 18 years old[25]. It is likely that similar provisions were of general application in Lutheran congregations at the time of the formation of the LCA. In such a context, the use of the expression "voting members" to distinguish such persons from members not entitled to vote (eg women) would not be surprising. In clause (m) of the rules and regulations of the Marburg congregation, that appears to be precisely how the expression is used. Under that clause, a resolution may be carried by a two-thirds majority of all voting members present at the meeting. That would seem to indicate that in that clause, abstainers who are present are to be counted in ascertaining the two-thirds majority, but members entitled to vote who are not at the meeting are not to be counted[26]. By contrast, in the LCA by-laws there is no limitation on the class of voting members required to be counted for the purposes of by-law 3. A requirement for a two-thirds majority of all of the members of the congregation entitled to vote would, it is true, be difficult to fulfil, and one would hesitate to interpret the by-laws in such a way as to make the conduct of congregational life a burden. However since the LCA constitution does not generally deal with the internal affairs of congregations, that result is unlikely to arise. A strict meaning attributed to the expression "voting members" in by-law 3 has no repercussions elsewhere, as far as I am aware. Moreover, such a meaning is less surprising in the context of such a fundamental issue as withdrawal from the LCA than it would be in a more mechanical or administrative context. Not without some hesitation, I have come to the conclusion that the expression refers to all members of the congregation who are entitled to vote. It follows that the requisite majority was not achieved at the meeting of 21st June 1992.
[25]It was not argued that both conditions must be fulfilled to satisfy an entitlement to vote.
[26]There is no provision for voting by proxy. Whether this would be possible, and if so, whether the voter would be "present" at the meeting, are questions which need not be decided here.
I was referred to the decision of the Court of Appeal in Knowles v Zoological Society of London[27], but I have not found it of direct assistance in the present context.
[27][1959] 2 All E.R. 595.
That is enough to dispose of this aspect of the matter, but in case my conclusion be wrong, and in deference to the arguments of counsel, I should refer to some other issues. It was submitted on behalf of the plaintiffs that even if the requisite majority was obtained, the resolution did not in terms operate to effect a termination of membership. It was submitted that the resolution could sensibly be read as an indication that the majority of the congregation wished steps to be taken to bring about a withdrawal. It is true that the resolution does not in terms purport to implement a withdrawal, no doubt because its draftsmen were conscious of the argument that the congregation had never acquired membership in the first place. However the LCA by-law does not require any particular form of words to satisfy the requirements of para.(a) of clause 3. It requires only a resolution "indicating desire to withdraw". In my judgment, the resolutions of 21st June 1992 do indicate a desire to withdraw. I am also satisfied on the evidence that the presence of Pastor Vitale at the meeting and the subsequent correspondence between him and the elders was sufficient compliance with the requirement for submission of the resolution to the President of the District. On the other hand, I doubt whether the evidence discloses the continuation of negotiations for 90 days thereafter, as required by para.(b) of clause 3, and as far as para.(c) is concerned, the defendants admitted that no "final vote" was ever taken. They submitted that Pastor Vitale as President waived the requirement for that vote, but I am not satisfied that anything occurred which could amount to such a waiver, nor that Pastor Vitale had authority to dispense with the requirements of the by-laws by waiver. Consequently, I am not satisfied that there was compliance with paras.(b) and (c) of clause 3.
Termination under the Marburg constitution
I heard considerable argument on the question of whether, even if the requirements of clause 3 were met, the requirements of the Marburg constitution, particularly the affiliation clause, were met. Issues were raised of whether the purported amendments of the Marburg constitution in 1966 were validly effected; and whether it was or could have been "evident" that false doctrine was being tolerated in the LCA by reason of the rejection by that body of the Declaration and Plea printed in the appendix to the Marburg constitution[28]. Having regard to the way in which the case has been conducted and to the conclusions which I have already reached, it is unnecessary for me to decide upon these matters.
[28]The defendants expressly limited their allegations of false doctrine to this question.
Membership of the LCA: standing and justiciability
Thus far, I have given no consideration to issues of standing and justiciability. In part I have done this because that was the course taken by the parties. At first blush, this seems a little surprising. It is not instantly apparent why an individual member of the congregation (or a number of such members) should have the right to challenge the activities of the elders in relation to the LCA; and even if individual action be competent, it is by no means clear that the rights being asserted are of a type which the Court will enforce. As to the former issue, it may be that the rules and regulations of the Marburg congregation may be regarded as having been supplemented by practice and usage, insofar as the congregation's membership of the LCA is concerned: compare Lewis v Heffer[29]. Perhaps the long years of membership of the LCA have imported into the Marburg rules an obligation to comply with the rules of the LCA[30]. As to the latter issue, it might have been thought that decisions such as Cameron v Hogan[31] and Scandrett v Dowling[32] present formidable obstacles in the plaintiffs' path to relief in this Court. Perhaps those obstacles can be overcome because only declaratory relief is sought, and all of the members of the congregation are parties, or because the financial relations between the congregation and the LCA give rise to a sufficient interest[33]. Perhaps there are features of the compact between the parties reflected in the constitution and rules of the Marburg congregation to which my attention has not been drawn, and which would bring this within the established cases where the courts will grant relief[34]. I need not determine these matters, for none of them was raised by the defendants. They were content, indeed perhaps even anxious, for me to decide the issues. There is a deal of practicality about that approach and I therefore adopt it without too close a scrutiny. I express no view on the plaintiffs' standing nor upon the justiciability of the matters considered earlier in this judgment.
[29][1978] 1 W.L.R. 1061 at pp.1072, 1076.
[30]See however in Re Tobacco Trade Benevolent Association Charitable Trusts [1958] 1 W.L.R. 1113 at pp.1115-6.
[31](1934) 51 C.L.R. 358.
[32](1992) 27 N.S.W.L.R. 483.
[33]Compare Bailey v The Uniting Church in Australia Property Trust (Qld) [1984] 1 Qd.R. 42.
[34]Compare Attorney-General (N.S.W.) v Grant (1976) 135 C.L.R. 587.
The plaintiffs' membership of the Marburg congregation
I have already stated my finding that the elders removed the names of those whom they described as "ex-members of the Trinity Lutheran Church, Marburg" from the list of members of the congregation. I infer that those whose names were removed were the plaintiffs. They contend that the removal of their names - effectively, their expulsion - was unlawful. It might be thought that the proper respondents to such a contention would be the elders who removed the names, or perhaps also the members of the congregation who voted in favour of endorsing that action in January 1993. There is no evidence that all of the defendants are properly so described. However the essential point is whether the removal was valid; and submissions have been made on behalf of all of the defendants that it was. Their conduct in authorising such submissions is sufficient, in the unusual circumstances of this case, to expose them to declaratory relief if their submission proves incorrect. They did not submit otherwise.
The plaintiffs' expulsion by the elders was justified by reference to para.E(g)[35] of the constitution and para.(b) of the rules and regulations. The defendants submitted that para.(b) was infringed by the plaintiffs' adherence to (or "affiliation" with) the LCA. That was also the major basis of the resolution of the annual general meeting of the Marburg congregation on 31st January 1993.
[35]Referred to in the letter of 4th November 1992 by its reprinted lettering, para.F.g.
It is far from clear what the expression "ordinances of the congregation" in para.(g) means. I am however satisfied that it cannot refer to the resolution of 21st June 1992. That resolution was, for reasons already explained, ineffective. I cannot construe para.(g) as referring to a failure to submit to an ineffective resolution. Insofar as the expulsions relied upon para.(b) of the rules and regulations, they can be justified only on the basis that those expelled affiliated with a church other than the Marburg church. I have already found that individual members of the congregation did not become members of the LCA. The plaintiffs' conduct in 1992 was directed toward ensuring the continuation of the congregational membership of the LCA. It does not seem to me that such conduct can appropriately be brought within para.(b). Indeed, were it otherwise, the defendants would also be in breach of the rule for joining with the Aubigny congregation in forming the Australian Evangelical Lutheran Church. In my judgment, the plaintiffs were not in breach of rule (b).
There was in the correspondence between the elders and the plaintiffs, and also in the resolution of 31st January 1993, some attempt to justify the expulsions on the basis that those expelled had invited the services of a pastor in opposition to the duly called pastor of the congregation. I did not understand the defendants to contend that this basis could be supported if they were unsuccessful in their submissions that the Marburg congregation was not at the relevant time a member of the LCA.
Whether the plaintiffs should have relief granted in relation to this issue raises questions of standing and justiciability similar to those already discussed. On the present issue, the plaintiffs are probably in a stronger position than on the issues already discussed. In any event, for the reasons stated above, an appropriate order should be made.
The plaintiffs' use of congregational property
The plaintiffs claim that the defendants changed the locks on the church and the hall and excluded the plaintiffs from those premises. The defendants deny such conduct. At the hearing they expressly pressed the denial, in effect requiring the plaintiffs to go into evidence on the question. The plaintiffs chose not to do so. The documentary evidence, such as it is, does not demonstrate the plaintiffs' contention. I am not prepared to make the findings which the plaintiffs seek. Indeed it seems highly improbable that the defendants (as opposed to the elders) would have been in a position to do anything to exclude the plaintiffs from the premises.
That is sufficient to preclude the plaintiffs' obtaining relief as sought in para.(v) of the prayer. I should add however that it appeared from the argument that the plaintiffs accepted that in fact the defendants were not denying them access to the church property absolutely, but rather, were allowing such access only on terms that they attend services conducted by Pastor Grieger and not attempt to hold separate services conducted by another pastor. The plaintiffs' contention seemed to be that as members of the congregation, they had a right to use the building for such a purpose. It seemed to be assumed that if they were successful in relation to the questions which I have decided above, a favourable result in relation to para.(v) of the prayer for relief followed as of course. I do not agree.
The right of individuals or groups within the congregation to use the church property cannot be absolute. Their only claim of right must be based on their position as members of the congregation, and therefore as beneficiaries or potential beneficiaries, of the charitable trusts upon which the property is held. As beneficiaries they have no right to control the use of the property. That is the function of the trustee, the corporation created under the Religious Educational and Charitable Institutions Act 1861. Presumably, in deciding who may use the church property, when and for what, the trustee would be entitled to take into account the views of the elders and of other members of the congregation. It is conceivable, but perhaps unlikely, that the plaintiffs might obtain injunctive relief against any elders or members of the congregation who sought to influence the trustee to act improperly. Whether a refusal by the trustee to permit the plaintiffs and their pastor to conduct services in competition with those run for the congregation as a whole would constitute such impropriety is a matter for argument. No such issue was raised on the pleadings or argued before me. In any event, such a case would require the trustee to be joined as a party to the litigation and the plaintiffs chose not to do this[36]. It seems that the Attorney-General would also be a necessary party to any action for the enforcement of the charitable trusts[37].
[36]Pastor Grieger, one of the four who constitute the trustee, was not even a personal defendant.
[37]Ware v Cumberledge (1855) 20 Beav. 503 at p.511; 52 E.R. 697 at p.700; Kytherian Association of Queensland v. Sklavos (1958) 101 C.L.R. 56; Re Belling [1967] Ch. 425.
In these circumstances it is both unnecessary and undesirable that I express a view on the merits of any such proceeding.
Relief to be granted
The LCA was not a party to the proceedings. Ordinarily I would hesitate to make some of the following declarations in its absence; but the defendants took no point in this regard. I assume that the LCA must have been aware of the proceedings. It could have sought to intervene had it wished to do so. In any event, the declarations will operate only inter partes. They cannot bind the LCA, although they may assist the present parties in resolving their relationship with the LCA. Because the LCA was not a party, I do not propose to comment on the correctness or validity of determinations contained in the report of the LCA Investigating Committee of March 1993. Equally, my decision cannot bind Pastor Grieger, since he was not a party to the proceedings. Subject to these constraints, I have tried to resolve the issues as they were presented to me. If the outcome exhibits a degree of artificiality, it is the parties' own doing.
I will hear the parties as to the precise form of the declarations. As presently minded, I would not be prepared to grant the declaration sought in para.(i) of the prayer. As I have observed above, there is very little in the constitution of the LCA dealing with the conduct and affairs of individual congregations; and as far as I can see, there is nothing dealing with the conduct of the trustee appointed under the Religious Educational and Charitable Institutions Act 1861.
The second declaration sought in the prayer appears to go beyond the case argued on behalf of the plaintiffs. It certainly goes beyond my findings. I have found that the resolutions were not adopted by a two-thirds majority of the voting members of the congregation within the meaning of para.(a) of that clause. The declaration should reflect that finding.
There should also be declarations that the congregation is a member of the LCA and that the plaintiffs are members of the congregation.
I will hear the parties on the question of costs.
IN THE SUPREME COURT
OF QUEENSLAND No. 364 of 1994
BETWEEN:
GUSTAV PETERS, HANS STUTTE AND GREGORY WILLIAM HECK representing themselves and others.
Plaintiffs
AND:
LESLIE B KERLE, BEVAN R WENDT AND KEVIN L KREIS representing themselves and others.
Defendants
BEFORE THE HONOURABLE JUSTICE FRYBERG
AT BRISBANE ON THE 24TH DAY OF APRIL, 1997
DECLARE THAT:
Resolutions of the congregation of the Trinity Evangelical Lutheran Church at Marburg, Queensland on 21st June 1992 were not adopted by a two-thirds majority of the voting members of the congregation within the meaning of para.(a) of clause 3 of Article IV of the Lutheran Church of Australia By-laws.
That congregation is a member of the Lutheran Church of Australia.
The plaintiffs and the persons they represent are members of that congregation.
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