Plenty & Anor v Seventh Day Adventist Church of Port Pirie - [2009] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PLENTY & ANOR v SEVENTH DAY ADVENTIST CHURCH OF PORT PIRIE
[2009] SASC 10
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)
19 January 2009
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - EXERCISE OF POWERS OF EXPULSION - DENIAL OF NATURAL JUSTICE GENERALLY
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - REMEDIES FOR WRONGFUL EXPULSION
Appeal against decisions of Supreme Court Judge – appellants disfellowshipped from Church for alleged misconduct – appellants successful in seeking declaration that disfellowshipping was null and void by reason of denial of natural justice and procedural fairness – appellants unsuccessful in seeking damages for breach of contract and breach of duty of care causing appellants psychiatric and physical harm as well as loss of reputation - whether Judge erred in failing to make findings of bias and malice on the part of the Church associated with the denial of natural justice – whether Judge should have concluded that the Church had abandoned its defence to the justiciability of the disfellowshipping procedure, and that an estoppel in the circumstances arose – whether the Judge was wrong to reject the claims in contract and tort – whether the Judge erred in finding that the appellants had not suffered psychiatric illnesses – whether the Judge erred in failing to award the appellants damages for loss of proprietary rights – whether the Judge should have awarded damages flowing from the loss of reputation suffered by the appellants as a consequence of the denial of natural justice – whether the Judge erred in his award for costs.
Held, dismissing appeal: Judge did not err in failing to make findings of bias and malice – Judge did not err in rejecting the claims in contract and tort – Judge did not err in finding that the appellants had not suffered psychiatric illnesses – Judge did not err in failing to award the appellants damages for loss of proprietary rights – Judge did not err in refusing to award damages flowing from the loss of reputation suffered by the appellants as a consequence of the denial of natural justice –Judge did not err in his award for costs.

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT - FUTILITY OF DECLARATION
Cross appeal – whether Judge erred in making declarations that the appellants had suffered a denial of natural justice.
Held: declaration set aside - findings in the reasons identify the denial of natural justice that occurred and those reasons have been and will remain publicly available to record the legal wrong suffered by the appellants – the declaration is unnecessary.
Evidence Act 1935 (SA) s 45A, s 45B, referred to.
Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie [2003] SASC 68; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie [2006] SASC 361; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (unreported, Supreme Court of South Australia, Duggan J, 17 May 2007); Australian Workers’ Union v Bowen (No 2) (1948) 47 CLR 601; Cameron v Hogan (1934) 51 CLR 358; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121; Baltic Shipping Co v Dillon (1993) 176 CLR 344; Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Ferry v Bonnin (1889) 23 SALR 66; Innes v Wylie 1 CAR and K 256; Byrne v Auckland Irish Society Inc [1979] 1 NZLR 351; Trevorrow v State of South Australia (No 7) [2008] SASC 5; Ainsworth v Criminal Justice Commission (1991) 175 CLR 564; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Lindsay Petroleum Company v Hurd & Ors (1874) LR 5 PC 221; Ridge v Baldwin [1964] AC 40; Durayappah v Fernando [1967] 2 AC 337; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; F. Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry [1975] AC 295; London & Clydeside Estate Ltd v Aberdeen District Council [1980] 1 WLR 182; Bond v Workcover of South Australia and Allianz Australia Workers’ Compensation (SA) Ltd (2005) 93 SASR 315; R v B,MA (2007) 99 SASR 384; State of Victoria v Sutton (1998) 195 CLR 291; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Calvin v Carr [1980] AC 574; Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; Minister for Immigration & Multicultural Affairs v Bhardwaj [1999] FCA 1806, considered.

PLENTY & ANOR v SEVENTH DAY ADVENTIST CHURCH OF PORT PIRIE
[2009] SASC 10
Full Court: Gray, Vanstone and Anderson JJ
GRAY J.
Introduction

The events giving rise to this appeal and cross-appeal have their genesis in the 1970s. The within proceedings were commenced in 1982 and relate to the disfellowshipping of Sydney Graham Plenty and Deeane Plenty, the plaintiffs and appellants, from the Seventh Day Adventist Church of Port Pirie, the defendant and respondent. The disfellowshipping from the Port Pirie Church occurred on 1 December 1979.
After several decades of delay, the proceedings went to trial in 2002. The learned trial Judge considered whether there had been a denial of natural justice. The Judge also considered an application for a declaration that the disfellowshipping decisions, taken by the Port Pirie Church, were contrary to natural justice, and were illegal, null and void. On 10 March 2003, the Judge reached the conclusion that Mr and Mrs Plenty had been denied natural justice.[1] The Judge also considered that it was appropriate that a declaration be made. In his reasons for judgment at this time, the Judge concluded “there will be a declaration that the purported disfellowshipping of the plaintiffs from the defendant church on 1 December 1979 was void and of no effect”.[2]
[1] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68.
[2] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [100].
Following the March 2003 decision, Mr and Mrs Plenty amended their statement of claim to seek damages for breach of contract and for breach of a duty to take care.
Mr and Mrs Plenty now assert that they also claimed an entitlement to damages for the loss of proprietary rights, and for damages flowing from the breach of the rules of natural justice. However, a review of the amended statement of claim fails to support this assertion. The claims advanced were for damages in contract and tort. Particulars were provided alleging damage to the plaintiffs’ reputation and integrity, the loss of enjoyment of the personal use of the Church building and recreational hall, the suffering of emotional distress, and the sustaining of what were termed “physical sequelae”.
Other losses were also advanced, including loss of employment with the Church, members of the Church and the South Australian Conference of the Church, the loss of the right to assemble, the deprivation of their right to follow and practise their unique beliefs, the undermining of their parental guidance to their children. On appeal, no complaint was advanced with respect to any of the alleged other losses.
In 2006, the further hearing proceeded. Judgment was delivered on 30 November 2006.[3] The Judge found that the arrangement between Mr and Mrs Plenty and the Port Pirie Church amounted to no more than a consensual compact and that there was no contract. The Judge concluded that even if there had been a contract, damage had not been proved. The Judge rejected a claim that Mr Plenty had suffered a heart attack and digestive problems as a result of the stress occasioned by disfellowshipping. The Judge rejected Mrs Plenty’s claim to have suffered physical ill health – that is, a physical sequelae.
[3] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361.
The Judge found that Mr and Mrs Plenty had both suffered distress as a result of being disfellowshipped by the Port Pirie Church, however, he concluded that it had not been proved that either of them suffered from a recognised psychiatric illness. The Judge concluded that damages for distress, anxiety and disappointment were not recoverable in the particular circumstances. As a result of the foregoing conclusions, the Judge dismissed the claim in contract.
The Judge rejected the claim in tort, finding that the Port Pirie Church did not owe a relevant duty of care to Mr and Mrs Plenty – that is, a duty not to cause them emotional distress. The Judge concluded that in order for a duty of care to arise, it was necessary, as a first step, for Mr and Mrs Plenty to establish that the suffering of a recognisable psychiatric illness was reasonably foreseeable. As earlier observed, the Judge concluded that neither Mr nor Mrs Plenty had suffered a recognisable psychiatric illness.
The Judge addressed the claim for loss of proprietary rights within the context of the claim for damages for breach of contract. The Judge made no finding that Mr and Mrs Plenty had suffered a loss of reputation as a result of a denial of natural justice. The Judge did not specifically address a claim for damages for loss of reputation allegedly flowing from a breach of natural justice. This is not surprising as a review of the amended statement of claim, and the oral and written submissions from the trial, do not disclose any specific claim in these terms. The reference to loss of reputation was associated generally with other causes of action.
The Judge delivered three sets of reasons. The first, in March 2003, concerned his conclusion on the denial of natural justice claim,[4] the second, in November 2006, concerned the claim for damages,[5] and the third, in 2007, concerned costs.[6]
[4]    Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68.
[5]    Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361.
[6]    Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor (unreported, Supreme Court of South Australia, Duggan J, 17 May 2007).
The declarations and orders of the Court were not drawn up and sealed until 23 October 2007. They provide as follows:
The Court orders and declares that:
1.The purported disfellowshipping of the plaintiffs from the defendant church on 1 December 1979 was null and void.
2.The claim for damages in contract and tort arising out of the disfellowshipping of the plaintiffs be dismissed.
It is to be noted that the terms of the declaration of the Court do not accord with the Judge’s reasons of March 2003. Further, the order dismissing the claim for damages makes no reference to a claim for damages arising from a separate cause of action for loss of proprietary rights, or a separate cause of action for damages arising from a denial of natural justice. This was unsurprising, having regard to my earlier remarks about these suggested claims.
Mr and Mrs Plenty had commenced defamation proceedings against the South Australian Conference of the Seventh Day Adventist Church, and its communications director, Alex Raymond Dickson, with respect to a publication in 1980. Interlocutory judgment had been entered in favour of Mr and Mrs Plenty for damages to be assessed on 22 May 1991. By consent, the assessments of damages in the defamation proceedings were heard at the same time as the within proceedings. In those proceedings, Mr and Mrs Plenty appealed, complaining about the adequacy of the awards of damages made in their favour, and the defendants appealed with respect to the order for costs made in favour of Mr and Mrs Plenty. The appeal and cross-appeal in those proceedings was heard at the same time as the appeal and cross-appeal in the within proceedings. The judgment of this Court in the defamation proceedings are published separately.
On appeal, Mr and Mrs Plenty raised numerous complaints. It was said that the Judge erred in failing to make findings of bias and malice on the part of the Port Pirie Church associated with the denial of natural justice. Mr and Mrs Plenty also complained that the Judge should have concluded that the Port Pirie Church had abandoned its defence to the justiciability of the disfellowshipping procedure, and that an estoppel in the circumstances arose. This point appeared to be raised in response to the cross-appeal by the Port Pirie Church with respect to the declaration made by the Judge.
It was complained that the Judge was wrong to reject the claims in contract and tort. Complaints were advanced with respect to the Judge’s findings that Mr and Mrs Plenty had not suffered psychiatric illnesses. A further claim was that the Judge had failed to award Mr and Mrs Plenty damages for loss of proprietary rights. In addition it was claimed that the Judge should have awarded damages flowing from the loss of reputation suffered by Mr and Mrs Plenty as a consequence of the denial of natural justice. Other subsidiary complaints were advanced and have been subsumed within the above topics. Finally, Mr and Mrs Plenty sought to have this Court review several aspects of costs orders made by the Judge.
Factual Background
Before coming to discuss the issues arising on the appeal, it is appropriate to set out the background facts and events leading to these proceedings.
In the late 1950s, Mr and Mrs Plenty joined the Seventh Day Adventist Church of Port Pirie. Shortly thereafter, they moved to Western Australia and joined a Seventh Day Adventist Church in that State. They returned to South Australia in the 1970s and rejoined the Port Pirie Church and signed the roll as members of the Church. It is relevant to point out that the signing of the roll allowed a member of the Church to participate in the administration of the Church, and in the making of decisions with respect to the Church. However, a person may attend the Church for the purposes of worship and fellowship, and make use of the Church facilities, without having signed the roll.
During the 1970s, a dispute arose between Mr and Mrs Plenty and the Port Pirie Church apparently concerning the election of persons to positions within the Church. In late 1975 and early 1976, correspondence was exchanged between Mr and Mrs Plenty and the Church in which Mr and Mrs Plenty requested that their names be removed from the roll of members. Their letters complained of allegedly serious irregularities, and at times they used strong and intemperate language. The responses from the Port Pirie Church were respectful and conciliatory. In effect the Church urged Mr and Mrs Plenty not to resign. However, Mr and Mrs Plenty persisted and their names were removed from the roll.
Circumstances changed, and in late 1977, Mr and Mrs Plenty applied to be reinstated on the roll. The Port Pirie Church agreed to this request, but before reinstatement could be effected Mr and Mrs Plenty withdrew their application for reinstatement. At that time, they complained about what they considered to be affronting behaviour. Although the evidence is not entirely clear, it appears that they again sought readmission, and on 6 May 1978, their names were again entered on the roll.
Matters concerning Mr and Mrs Plenty apparently gave rise to concerns within the Port Pirie Church, leading to the disfellowshipping of Mr and Mrs Plenty from that Church on 1 December 1979. As earlier observed, the Judge concluded that Mr and Mrs Plenty were denied natural justice in the process of their disfellowshipping. There has been no challenge by the Port Pirie Church to this conclusion. However, by way of cross-appeal, the Port Pirie Church contested the making of a declaration.
It is relevant to record that Mr and Mrs Plenty had engaged in other litigation while in Western Australia. Mr and Mrs Plenty claimed to have sustained injuries in a motor vehicle accident in 1968. They pursued claims in the District Court of Western Australia, and then on appeal to the Full Court of the Supreme Court of Western Australia. It is apparent that Mr and Mrs Plenty felt aggrieved by the way in which they were treated through these proceedings. Their complaints were summarised in a letter written to the Deputy Commissioner of Taxation on 1 May 1978. This was written a little more than 18 months before the disfellowshipping of Mr and Mrs Plenty in December 1979. The letter to the Deputy Commissioner of Taxation included the following:
We formally lodge this objection under section 185 of the Income Tax Assessment Act. Our objections are based on the following reasons: -
Which began with a car accident on June 7, 1968 in Western Australia, in which we were both innocent victims, being claimants to the government compulsory Third Party Insurance. The sole insurance company being government owned. Injuries received forced us off our farming and grazing properties, which is supported by medical evidence.
We were forced into going into court under the Third Party Insurance Act of Western Australia, by an action brought by them. This was brought before the Third Party Claims Tribunal in December 1971, before Judge Pidgeon and two associates, for two days, and was carried over for the ridiculous period of seven months to July 1972, for another two days, but this time only before Judge Pidgeon, and in the District Court of Perth, as ironically, only the week before, the Third Party Claims Tribunal had ceased to exist.
The judgment that came out of this four day trial, clearly showed Judge Pideon’s allegiance to his employers the Government, (who appointed and pay him), as he fabricated, twisted and distorted evidence, and handed down the most uncivilized judgement that one would ever wish to see in order to cheat us out of a correct and just compensation.
Immediately on recept of this judgment, we instructed our solicitors to appeal against this corrupt judgement, in which the Notice of Appeal challenged the trial judge for not following the evidence, and the Appeal Court to substitute the award based on the evidence. By the failure of our solicitors to follow the Rules of the Court, the matter did not come to a judgement until about twelve months later.
The three judges of the appeal in the Full Court of Western Australia, (who were Chief Justice Jackson, Judges Burt and Latham), in their judgement upheld our appeal in the fact that the trial judge did not follow the evidence, but erred in law to substitute the award based on the evidence presented. Instead, in order to protect the corruption of the trial judge, they illegally placed the [illegible] on Mr Plenty to order a re-trial, and they have illegally placed the onus back on Mr Plenty, to prove that he mitigated his damages by the most atrocious conditions that an individual could ever be placed under, by making it mandatory for him to having exploratory operations (which was against medical opinion), entirely for the purpose of defining for the court the extent of the injury, regardless of what further incapacity this would cause.
The letter contained a litany of other complaints, and as the trial Judge in the present proceedings observed:[7]
The letter provides a useful catalogue of the many issues about which Mr and Mrs Plenty were complaining up to this point in time, which was shortly before the disfellowshipping. It records the stressors which the plaintiffs explained were affecting them at this time and it provides some support for Dr Blakemore’s comment concerning Mr Plenty’s resort to rhetoric during the psychiatric examinations.
[7] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [98].

In the course of the letter to the Deputy Commissioner, a further complaint was advanced concerning litigation between Mr and Mrs Plenty and the Deputy Commissioner. Mr and Mrs Plenty wrote about events in October 1977 in the following terms:
On the 25^th of October 1977, we lodged our own appeal from the Deputy Master decision. The Deputy Crown Solicitor’s Office was immediately informed of our appeal, by the Supreme Court. However, when an action is taken against us, we don’t know about it until after the case is heard, which reflects the double standards of our system.
On the 4^th of November 1977, we went before Justice Mitchell in Chambers for our appeal from the Deputy Master. We had arranged for witnesses to be present, however this right was denied to us. We were not even given a chance to sit down before this tyrant attacked us with an angry attitude, she denied us any right of producing law to support our appeal, or to explain anything in connection with the gaol sentence that is hanging over us, and we could in fact only say what she wanted us to say. Needless to say that with a judge like this, our appeal was dismissed, and we were ordered to appear in court for trial 3 days later, two of which were the weekend.
Suffering from extreme shock from this criminal assault from Judge Mitchell, we sent a telegram to the Supreme Court at 9.00a.m. on the day of the trial to advise that we would not be attending court because of illness and asking for an adjournment. However this did not reach the court until after our case was heard, and once again a decision was given against us in our absence.
We made formal complaints to the Law Society of Sth. Aust. In regard to the unprofessional conduct of both the solicitors, Mr. J. Byrnes, and Mr. P.A.J. Herriman. However, the council of the Law Society, which includes the State Attorney-General Mr. P. Duncan, are involved in a cover-up, as they would not allow these matters to come before the Statutory Committee, and are in breach of the Legal Practitioners Act.
Suffering from shock, and a long period of atrocious acts committed against us, in which we have made many pleas for help, without success, we had in fact surrendered to any hope of justice in this country. We then lodged our taxation returns from 1973 to 1977 in a state of depression and suffering from severe shock, and we now believe that they have been lodged incorrectly.
These complaints, together with other complaints, led to further litigation in 1986 in the Supreme Court of South Australia. Mr and Mrs Plenty took action against both the Commonwealth of Australia and the State of South Australia. In the course of those proceedings the allegations with respect to the proceedings in Western Australia and South Australia were repeated, and the following particulars of damage were alleged:
The plaintiffs have suffered for 28 years from habitual, inhumane, torturous, and atrocious persecution from an unworkable legal system, causing them mental pressure, psychological trauma, duress, torment, intimidation, anguish, frustration, worry, fear which has caused the plaintiffs to suffer chronic, physical symptoms of emotional distress, insomnia, amnesia, nausea, depression, headaches, sinusitis intestinal upsets, disgust, horror, anger, embarrassment, disappointment, etc., whilst remaining passive throughout the whole time of this ill treatment. This, has resulted in the plaintiffs developing over that period of time, a fear, phobia, and distrust of the legal system, within which, they are compelled, and/or, practically compelled to keep using to resolve their affairs; and within which their affairs have been set into perpetual motion; which has left them unable to get away from those fears, distresses, etc., traumatizing their lives, destroying their trust and belief in their rights under the legal system, and any confidence in the workableness and justice of the legal system, which includes the Courts, The Judiciary, solicitors, barristers, Law Society, and the Legal Practitioners Complaints Committee.
All of this depriving the plaintiffs of being able to completely and finally resolve their outstanding legal problems that have been going on for 28 years, all of which has caused the plaintiffs a significant burden and hardship.
The plaintiffs have suffered from grave injustices that they have been forced to accept, and there are those that they have refused to accept, they have suffered from intimidation, and/or, coercion, and/or, blackmail, etc., from the legal system, in which they have been prepared to pay for proper representation; which includes solicitors, and/or, barristers taking their proper instructions.
The plaintiffs have been, and are traumatized by untenable and impossible position they have been and are placed in, in that by:-
having solicitors to act for them, because they are uncontrollable, and/or, unworkable; as,
there is no proper, and/or, ordinary contractual relationship; and
there is no forum, and/or, locus standi, for the plaintiffs to enforce any solicitor obligations to their solicitor/client contract; and
being without solicitors acting for them, as they are essential to the administration of law and justice.
The plaintiffs as a consequence of these particulars, have found and are finding that their will to live is greatly diminishing, and they are finding that it is grossly depressive to them to keep battling on with their lives; to the extent that they believe that it would have been kinder for them to have been annihilated 28 years ago.
The plaintiffs have advised their local doctor, Dr. J.N. Hutchins, and in the last year, Dr. B. Betty, about the stress etc, that they are under, and also the physical problems that such stress has caused them to suffer; their local doctor has only been able to assist them over this period of time with prescriptions of sleeping tablets, and by giving them the advice that the only way to stop the stress and the results of the stress is to resolve the problems that are causing them the stress, etc.
These matters are recorded by way of background. They are of some relevance in assessing claims to loss of reputation. They also provide an insight into the difficulties that confronted the Judge when assessing the claim that Mr and Mrs Plenty had suffered psychiatric illness as a result of the disfellowshipping.
Following the disfellowshipping, Mr and Mrs Plenty threatened litigation against the Port Pirie Church. Notwithstanding these threats they continued to attend the Church for a period of about 18 months. Thereafter they ceased attending the Port Pirie Church, and have not attended that Church for almost three decades.
The within proceedings were commenced in 1982, and took 20 years to reach trial, and almost 28 years have elapsed before the hearing of this appeal and cross-appeal. On any view, this is an unconscionable delay. A review of the Court record would suggest that responsibility for the delay rests with both parties. However, it may be safely concluded that either party could have brought the proceedings to trial much earlier. The delay also allows the conclusion to be reached that Mr and Mrs Plenty have no real desire to return to the Port Pirie Church. Their counsel spoke of the possibility of relationships being repaired in the future, but it is difficult to treat this possibility as other than extremely remote, if not fanciful.
The review of the Court record also demonstrates an engagement by the parties in almost endless interlocutory skirmishes. The review of the record would suggest a level of inappropriate recourse to a publicly funded process. The courts should not be used in this way.
The Judge addressed the Church Manual in some detail, observing:[8]
[8]    Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [7]-[12], [40].
Before dealing with the aftermath of these incidents, including the eventual disfellowshipping of the plaintiffs, it is appropriate to say something about the constitution of the church. The Church Manual of the Seventh Day Adventist Church (the manual) provides that there will be a Church Board in each church. The board is responsible for co-ordinating all departments of the church and for dealing with everyday activities and business matters. The manual also provides for a form of church government which vests authority in the church membership. Decisions are made at regularly convened church business meetings. The manual provides that members can only be disciplined at a duly convened church business meeting presided over by an ordained minister or a local ordained elder of the church concerned. A church business meeting is the meeting of the members of the particular church. All members are eligible to attend.
It is clear that church discipline plays an important role in the church and this is reflected in the detailed provisions which are contained in Chapter 13 of the manual. There is a directive in the manual that if a member falls into sin, sincere efforts must be made to reclaim him or her. If the erring member repents and submits to Christ’s discipline, he or she is to be given another trial.
The manual then refers to the forms of discipline which are available. It provides:
“When grievous sins are involved disciplinary measures must be taken. There are two ways by which this may be done:
1      By a vote of censure.
2      By a vote to disfellowship.
There may be cases where the offense is not considered by the church to be so serious as to warrant the extreme course of disfellowshipping the offending member, yet it may be sufficiently serious to call for an expression of disapproval. Such disapproval may be expressed by a vote of censure.
Censure has a twofold purpose:
1      To enable the church to express its disapproval of a grievous offence that has brought disgrace upon the cause of God.
2      To impress the offending member with the need for amendment of life and reformation in his conduct; also to extend to him a period of grace and probation during which these steps might be taken.”
After dealing further with the nature of censure the manual then goes on to consider disfellowshipping:
“To disfellowship a member means to expel him from the membership. To cut off a member from fellowship with the church, the body of Christ, is always a serious matter; it is the ultimate in the discipline that the church can administer; it is the extreme measure that can be meted out by the church. Only after the instruction given in this chapter has been followed, and after all possible efforts have been made to win an erring member from the evils of his ways and restore him to right paths, should this kind of discipline be used. It would be advisable to secure counsel from the pastor of the church, or, if he is not available, from the conference or field president before any action is taken by the church, when such a step is contemplated (emphasis as used in the church manual).”
The manual sets out the reasons for which members can be disciplined. It provides:
“Among the grievous sins for which members shall be subject to church discipline are the following:
1      Denial of faith in the fundamentals of the gospel and in the cardinal doctrines of the church or teaching doctrines contrary to the same.
2      Open violation of the law of God, such as worship of idols, murder, adultery, fornication and various perversions, stealing, profanity, gambling, Sabbathbreaking, wilful and habitual falsehood, and the remarriage of a divorced person, except of the innocent party in a divorce for adultery.
3      Fraud or wilful misrepresentation in business.
4      Disorderly conduct which brings reproach upon the cause.
5      Adhering to or taking part in a divisive or disloyal movement or organization. (See pp 243, 244, ‘Self-appointed Organizations’).
6      Persistent refusal to recognize properly constituted church authority or to submit to the order and discipline of the church.
7      Instigating or continuing legal action against the church or any of its organizations or institutions, contrary to Biblical and Ellen G White counsels. (See pp 244, 245)
8      The use, manufacture, or sale of alcoholic beverages.
9      The use of tobacco or addiction to narcotic drugs.”
The manual states that lawyers are not to represent members at a hearing called to administer discipline. However the manual states:
“It is a fundamental principle of justice that every member has the right to be heard in his own defense, and to introduce evidence and produce witnesses in his own behalf. No church should vote to disfellowship a member under circumstances that deprive him of this right, if he chooses to exercise it. Due notice should be given by the church to the member under discipline of intention to try his case, thus giving him opportunity to appear in his own behalf.”
…
The extracts which I have quoted from the church manual reveal that the allegations made against the plaintiffs, if proved, constituted “grievous sins” in the eyes of the church. Disfellowshipping could only take place if the conduct was “sufficiently serious”. This action was described as “the extreme course”.
The Judge described the allegations made against Mr Plenty in the following terms:[9]
[9] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [41].
The original allegations made against Mr Plenty were for disorderly conduct, wilful and habitual falsehood and persistent refusal to recognise properly constituted church authority. Similar charges were laid against Mrs Plenty with the exception of the charge of disorderly conduct.
and then noted:[10]
[10] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [42]-[43].
It is evident, therefore, that the hearing had the potential to damage severely the reputation of the plaintiffs. After the hearing it became known that they had been expelled from their church for misconduct. It is true that the charges were amended by the time of the hearing. However, the allegations found proved included “disorderly conduct which brings reproach upon the cause of God”. This conduct was regarded as a “grievous sin” and such as to warrant the severe penalty of disfellowshipping.
These circumstances are to be distinguished from cases where a person is expelled from an association simply for failing to abide by its rules. This was not a case of mere expulsion. The decision held serious implications for the integrity and reputation of the plaintiffs. I have reached the conclusion that the plaintiffs were entitled to a hearing in accordance with the rules of natural justice.
The Judge then reviewed the processes followed, and concluded:[11]
[11] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [87]-[90].
It would appear that the amended charges were meant to apply also to Mrs Plenty. In her case also the charge of disorderly conduct by correspondence in the newspapers replaced this aspect of the charge of wilful and habitual falsehood which had been alleged against her originally. Mrs Plenty had not been charged with disorderly conduct at any time prior to the church business meeting on 1 December. This was a fresh charge and she was not made aware of it until she was told the charge against her had been proved. In my view, the church meeting should have been adjourned so that the amended charges could have been brought to the attention of the plaintiffs.
Whilst acknowledging that not all of the original charges were proceeded with, the fact that they were communicated to the plaintiffs without adequate particulars or explanation confused the plaintiffs from the outset. They could not be expected to defend themselves adequately bearing in mind the vagueness of the allegations and the short notice which they were given. To further complicate the matter the charges were reduced and those which remained were not worded in precisely the same language as their counterparts in the original allegations. The plaintiffs were unaware of these charges until they received the letters notifying them that they had been disfellowshipped.
Finally, the plaintiffs were not given an opportunity to make submissions to the church business meeting after being found guilty of the amended charges. Disfellowshipping is not mandatory in these circumstances. The less serious option of censure was also available. Even if the plaintiffs were not justified in refusing to attend the meeting, the fact that not all the charges were proceeded with and that only the remaining charges were proved, rendered it appropriate for the plaintiffs to be given an opportunity to make submissions on what action the church members should take.
Given that the principles of natural justice apply in the present case, it is appropriate at this point to enquire what the duty to act fairly requires in the circumstances (Kioa v West (1985) 159 CLR 550 at 585; Russell v Duke of Norfolk [1949] 1 All ER 109). It is appropriate to bear in mind that an unfavourable decision by the church members involved grave consequences for the plaintiffs. Their church membership was a very important part of their lives, not only for spiritual reasons, but also socially. Their reputations in the local community were at stake. The manual acknowledges the gravity of disfellowshipping by describing it as “a serious matter” and “the ultimate in the discipline that the church can administer”. It is also referred to as “the extreme measure”. The breaches of discipline with which the plaintiffs were charged are described in the manual as “grievous sins”.
The Judge concluded:[12]
It must follow from these findings that the plaintiffs were denied natural justice. As I have pointed out, they were not given adequate information concerning the charges made against them so as to enable them to properly defend themselves. In addition, they were not advised of changes and amendments to the charges. They were given no opportunity to make submissions on penalty after being found guilty of the amended charges in their absence.
…
The question remains as to whether the declaration sought should be granted in the exercise of the discretion. I have taken into account the fact that these events occurred a long time ago. I have pointed out that the plaintiffs commenced proceedings on 28 June 1982. It was not argued at the hearing that delay in the matter had been the fault of either party. Nevertheless, the fact that the principal events took place such a long time ago is a relevant factor in considering the exercise of the discretion. The defendant also argued that it would be inappropriate for the plaintiffs to be admitted back into the church after the animosity which has resulted from the dispute and subsequent litigation.
I have taken these and other factors mentioned in argument into account. However I cannot agree with the defendant’s argument that the expulsion of the plaintiffs from the church was not a serious matter. I have attempted to point out that, in my view, the church action had far reaching implications for the reputation of the plaintiffs. If their reputations have suffered as a result of proceedings which were unfair, then an appropriate remedy should be made available to them.
There will be a declaration that the purported disfellowshipping of the plaintiffs from the defendant church on 1 December 1979 was void and of no effect.
[12] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [96], [98]-[100].
As earlier observed, for reasons that are unclear, Mr and Mrs Plenty did not proceed to draw up, seal and serve the Judge’s indicated declaration. The declaration was not formally drawn up, sealed and served until October 2007.
The Issues on Appeal
It is convenient against this background to turn to the issues that arise on the appeal.
Denial of Natural Justice – Bias and Malice

It is convenient to deal first with the complaint concerning the alleged failure of the Judge to make findings of bias and malice. The substance of the complaint of bias was that the Board members who had initially recommended that Mr and Mrs Plentys’ names be removed from the church roll voted for their removal. With respect to this topic, the Judge concluded:[13]
I should mention here a further argument advanced by the plaintiffs that the church business meeting was tainted with bias by reason of the fact that the board members had recommended at their meeting on 19 November 1979 that the names of the plaintiffs be removed from the church roll. While it is true that the board members took part in the deliberations of the church business meeting, I do not accept that the original motion to which I have referred resulted in a decision which was tainted by bias.
[13] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [97].
Observations of members of the High Court in Australian Workers’ Union v Bowen (No 2)[14] are relevant to this issue. That case concerned a complaint with respect to the conduct of the secretary of a union. Latham CJ observed:
The provisions of a statute ... or the rules of a voluntary association may exclude the application of the principle that a person who prepares and formulates charges and takes part in the prosecution of them is thereby precluded from taking part in the consideration and determination of them. … It appears to me to be obvious that the express provision of the rules that the Executive shall have the power of expelling members excludes in this case the application of the rule that a person who formulates and prosecutes charges is necessarily excluded thereby from participating in the hearing and determination of the charges.
The secretary of a trades union will necessarily be concerned in advocating and defending the policy of the union. Such action appears to me to be incidental to his position as secretary and it should, I think, be held to be within the contemplation of the rules.
Dixon J observed:[15]
That leaves on one side any question of the violation of the principle that prima facie a prosecutor cannot sit as judge. … The test applied to juries’ verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal’s decisions.
[14] Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 at 616-617.
[15] Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 at 628.
These observations fully support the Judge’s conclusion that there was no relevant bias. The membership of the Port Pirie Church was of a limited number. It was inevitable that Church members would be involved in initiating the disfellowshipping proceedings, as well as adjudicating upon them. To borrow from the reasoning of Latham CJ, the rules of the Port Pirie Church did not exclude those members initiating the complaint from adjudicating upon it.
The allegation of malice was barely pleaded, but was flagged during the cross-examination of Lynn Burton of the Port Pirie Church. In this respect the Judge concluded:[16]
In my view Pastor Burton’s version of the chronology of these events is probably more accurate than that of Pastor Cobbin. The minutes of the meeting of 29 November do not refer to the removal of the assault charge from the allegations. Furthermore, I think it unlikely that Pastor Burton would have been given instructions to tell the plaintiffs that the assault charge would be withdrawn only to tell them when he saw them that it would be proceeding. I reject the suggestion in cross-examination that Pastor Burton acted maliciously by misleading the plaintiffs in this manner.
However, the question remains why Pastor Burton did not tell Mr and Mrs Plenty that the assault charge would not be dealt with after Pastor Cobbin had conveyed this information to him on the Friday afternoon. Pastor Burton had just come from a meeting at which he told the plaintiffs that all charges would be dealt with at the church business meeting. The plaintiffs had made it quite clear in their letter to the board and in their discussion with Pastor Burton on the Friday that the fact of the pending appeal was at the heart of their objection to attending the meeting. They had been encouraged to attend despite their objection, but they remained adamant. A decision was then made to overcome the problem occasioned by the pending appeal. There was ample opportunity to advise the plaintiffs of this important change in plans after it had been communicated to Pastor Burton by Pastor Cobbin. Indeed they were present at the church service on Saturday when a reminder was given to the congregation about the church business meeting to be held that evening. However, nothing was said to them about the removal of this obstacle to their attendance at the meeting.
Pastor Burton could not give a plausible explanation for this omission. Again, I reject the suggestion that the omission was for some sinister purpose. However, it should have been obvious to him that it was important to pass the information on to the plaintiffs. At the very least, the failure to do so provides a further example of the lack of awareness on Pastor Burton’s part of the importance of providing the plaintiffs with adequate information before the hearing into the allegations.
The Judge’s conclusions with respect to the absence of malice were open to him. He heard the evidence, and in particular rejected the submission that there was malice following a full consideration of the evidence. No basis has been identified to give rise to any doubt with respect to the correctness of this conclusion.
[16] Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; [2003] SASC 68 at [75]-[77].
On the hearing of the appeal, a submission was made that the Port Pirie Church was estopped from challenging the declaration made with respect to the breach of natural justice. This was said to arise from the failure of the Port Pirie Church to challenge the making of the declaration for more than three years. The difficulty that confronts this submission is that the order of the Court was not drawn up and served until 2007. Further, it was not a declaration on which Mr and Mrs Plenty sought to act under in any way. As is discussed later, the submission of the Port Pirie Church was that the issue was dead, and that this was established by the evidence given in the 2006 hearing. It was said that, having regard to that further evidence, in the circumstances no declaration should have been made. In my view, no question of any estoppel arises.
Contract
Two principal questions arose on the claim for damages for breach of contract – whether there was a contract in existence, and if there was, whether Mr and Mrs Plenty, or either of them, had suffered any compensable loss.
The Judge reached the conclusion that it had not been established that there was a contract in existence. He took the view that there was no more than a consensual compact that fell short of creating contractually binding rights and duties, enforceable in courts of law. The Judge reviewed the legal authorities in some detail, including the observations of the High Court in Cameron v Hogan[17] and Ermogenous v Greek Orthodox Community of SA Inc.[18]
[17] Cameron v Hogan (1934) 51 CLR 358.
[18] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95.
In Cameron v Hogan the High Court gave detailed consideration to the difficulties of maintaining actions directly against voluntary associations. In that respect the Court observed:[19]
Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v. Eden Lord Cranworth said: “Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs.” (Compare per Jessel M.R., Rigby v. Connol; per Barry J., O'Keefe v. Cardinal Cullen.) Gavan Duffy J. considered that such statements should be understood as relating only to the jurisdiction of Courts of equity. There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. (Compare per Jessel M.R., Rigby v. Connol, and per Scrutton L.J., Rose and Frank Co. v. J. R. Crompton and Bros. Ltd.)
In the next place, the difficulty of framing an action by one member of a large body of persons for damages for breach of a contract constituted by his admission to membership has always been very great. Such a contract apparently is considered joint, and in common law in strictness it would have been necessary for the plaintiff to join all the members as defendants. It is true that his failure to do so could only be taken advantage of by the member or members sued by a plea of abatement. If the members of the body were very numerous, it might well become too difficult for a defendant to succeed upon such a plea. For the common law was that “the plea must accurately disclose the names of all the contracting parties so as to give a better writ; and if a party be omitted or too many be stated, the plaintiff may take issue on the plea and will succeed on the trial” (Chitty’s Pleading, 6th ed. (1837), p. 719). But a plaintiff might well hesitate on his side, and in fact no such action appears to be reported. Since the Judicature Act, the objection that co-contractors have not been joined must be taken by interlocutory proceeding, and cannot otherwise be relied upon (Smith v. Auchterlonie; Tipping v. Richelieu). But if the objection is properly taken, it will seldom, or perhaps never, be possible to overcome it by constituting the defendants representative parties under Order XVI., r. 9. If the defendants were to represent the “association” as an unincorporated body, with a view to the plaintiff's recovering the damages exclusively from its funds, they would represent the plaintiff as well as the other members: see Kelly v. National Society of Operative Printers, at p. 1060, per Phillimore L.J.; compare R. v. Cheshire County Court Judge and United Society of Boilermakers, per Scrutton L.J. If the defendants were sued on behalf of themselves and the members other than the plaintiff, the damages would be sought, not out of the association’s funds, but against them personally. Such a representative proceeding would not fall within the rule: see Hardie and Lane Ltd. v. Chiltern, and the cases there cited.
But if these procedural difficulties were overcome, and an enforceable contract of membership of an unpropertied voluntary association were found to have been in contemplation, it would become necessary to consider whether a breach of contract had been committed, and who was responsible. If the member suing complained that his expulsion had been improperly resolved upon by a committee or other officers of the association, he would be met by two answers. If the resolution was not authorized by the rules, it would be simply a void act: his membership would be unaffected, and there would be no breach of contract. “In the case of a purely voluntary association, a Court of equity bases its jurisdiction on property, there being nothing else for it to act on. A Court of common law before the Judicature Act regarded the invalid expulsion as void, and gave no damages. So between the two jurisdictions the plaintiff could rely only on property as the basis of jurisdiction” (per IsaacsJ., Edgar and Walker v. Meade). If the member whose expulsion has been invalidly resolved upon asserts rights arising out of his membership, it may be that those who, relying upon the attempted expulsion, resist the assertion, will be led into the commission of acts which are tortious because they lack the justification which a valid expulsion may give them. For the tort the member may then sue. Innes v. Wylie affords an example. But he cannot recover from the committee or the members for breach of contract. Cases in which a member, improperly expelled from a proprietary club, has recovered damages from the proprietor supply an illustration of another application of the same principle. Each member is entitled by contract with the proprietor to have the personal use and enjoyment of the club, in common with other members, so long as he pays his subscription, and is not excluded from the club under its rules (per Stirling J., Baird v. Wells). If a member is improperly expelled by the committee, his expulsion is invalid, he remains a member, and can enforce his contract with the proprietor.
[19] Cameron v Hogan (1934) 51 CLR 358 at 370-373 (footnotes omitted).
In Ermogenous, Gaudron, McHugh, Hayne and Callinan JJ approved and applied the observations in Cameron, before turning to an analysis of the particular circumstances then before the Court.[20]
[20] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 108.
The Judge then addressed the particular circumstances, had regard to the nature and membership of the Church, and to the Church manual, which defined the relationship between the Church and its members. The Judge then summarised the relevant aspects of the manual:[21]
[21] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [23]-[25], [28]-[35].
The manual is issued under the authority of the General Conference of Seventh-Day Adventists. It was first published in 1932. An opportunity to change or revise the manual arises at the General Conference held every five years.
The manual which was current at the time of the disfellowshipping of the plaintiffs was the 1976 edition (P 1).
It is important to note that the manual is not confined to a series of rules regulating the church and its members. Much of its content takes the form of a prescription of the way of life expected of its members. The text is laden with biblical references and extracts from the writings of Ellen White, a prominent member of the church in the late 19th and early 20th centuries. There are also extensive exultations on the Christian way of life. Instructions are given in relation to everyday matters, such as the preservation of good health, dress, recreation and entertainment. The manual also contains instructions on the conduct of church services and meetings.
…
It is stated in the manual that the payment of tithes is a scriptural obligation which every believer owes to God. It is stipulated that the proceeds of tithes are not to be used or dispersed by the local church, but must be passed on to the conference treasurer. The income from tithes provides funds for the local conference, the Union, and the General Conference. It is not to be spent on paying church or institutional debts, or on building operations.
Presumably, other funding can come from donations but, in my view, the mere paying of tithes or the making of donations does not give rise to a proprietary right.
It is clear that, for the most part, the manual deals with rights and duties of a religious nature which are not intended to be enforced at law. In my view, the relationship between the church and its members does not involve the creation of proprietary rights which, in turn, give rise to contractual obligations.
The next question is whether the section of the manual which deals with discipline creates contractual obligations relevant to the present case.
The provisions in the section of the manual dealing with discipline lack the particularity and precision which is sometimes evident in the rules of an association or club. They begin with an instruction based on Matthew 18:15–18 which, according to the statement of claim, was breached. The passage from Matthew refers to the requirement of an initial approach to a wrongdoer by the person wronged. In the event that this does not resolve the matter, the person wronged is advised to take witnesses to the wrongdoer in a further attempt to reach a resolution. Only if this fails, is it appropriate for the church to intervene. According to the plaintiffs, this prerequisite to the use of church discipline was not followed prior to the proceedings to disfellowship them.
The manual speaks of the power to discipline being derived from God and states that the church is responsible for dealing with sin. The manual goes on to make it clear that the function of the disciplinary system within the church is to deal with sins. It states that action must be taken if grievous sins are involved. This may be done by way of censure or disfellowshipping. The breaches with which the plaintiffs were charged are identified in the manual as examples of grievous sins.
The manual states at p 252:
The work of the church in its administration of order and discipline, is an ecclesiastical function, and in no sense has to do with civil or legal procedure; therefore, the church does not recognize the right of any member to bring a lawyer to represent him in any church meeting or council called to administer order or discipline, or for the transaction of any business relating to the church.
In my view, these aspects of the administration of the disciplinary system within the church cannot be regarded as giving rise to contractual obligations. They are heavily grounded in religious belief and practice and purport to exclude the civil law.
In the course of his reasons, the Judge had regard to the observations of an earlier Full Court in Plenty & Plenty v Seventh Day Adventist Church,[22] in which members of the Court had expressed the view that a passage in the manual supported the argument that the manual constituted a contract between the Church and its members. That Court considered a later version of the manual, in which was operational in the relevant times. The Judge noted that occurrence, and then concluded:[23]
[22] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121.
[23] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [41]-[43].
In any event, with the advantage of a complete hearing into the matter, I cannot, with respect, agree that the passage points to an intention to create legal relations. When read in context, it would seem that the passage is not referring to the enforcement of rights created by the manual, but rather rights derived from the civil law. That this is so is apparent from the following passage in the same section on church discipline taken from the 1981 edition at pp 242–243:
Settlement of Differences Among Members — Every effort should be made to settle differences among church members and contain the controversy within the smallest possible sphere. “Contentions, strife, and lawsuits between brethren are a disgrace to the cause of truth. Those who take such a course expose the church to the ridicule of her enemies and cause the powers of darkness to triumph. They are piercing the wounds of Christ afresh and putting Him to an open shame. By ignoring the authority of the church they show contempt for God, who gave to the church its authority.” — Testimonies, vol 5, pp 242, 243.
Civil litigation is often carried on in a spirit of contention that results from and reveals human selfishness. It is the kind of adversary proceedings that must be discouraged by a church that seeks to exhibit the spirit of Christ. Christian unselfishness will lead followers of Christ to “suffer … [themselves] to be defrauded” (1 Cor. 6:7) rather than to “go to law before the unjust, and not before the saints” (1 Cor. 6:1).
While there are, in the modern world, occasions for seeking decrees of civil courts, Christians should prefer settlement within the authority of the church, and should limit the seeking of such decrees to cases that are clearly within the jurisdiction of the civil courts and not within the authority of the church or for which the church agrees it has no adequate process for orderly settlement. Such suits before civil courts should never become revengeful adversary proceedings but should develop out of a desire to seek arbitration and to settle differences amicably. Examples of such cases may include, but are not limited to, the settlement of insurance claims, the issuance of decrees affecting the boundaries and ownership of real property, the deciding of some matters involving the administration of estates, and the awarding of custody of minor children. While the church should set up procedures within the constraints of legal practice to avoid the type of litigation referred to in 1 Corinthians 6, it should constantly be on guard against turning from its gospel mission and taking up the duties of a civil magistrate. (See Luke 12:13, 14 and Testimonies, vol 9, pp 216–218.)
In the section on settlement of grievances of members against the church, the manual states:
The same principles that influence resolution of differences among members apply to the settlement of grievances of members against church organizations and institutions.
For these reasons, I have reached the conclusion that the relationship between the church and the plaintiffs was not such as to give rise to any contractual obligation between the parties. The evidence does not support the claim that there was an intention to create a legal relationship.

In my view the Judge’s conclusion was correct. Having reviewed the manual, I do not consider that contractual rights and duties enforceable in a court of law were created. It appears that the manual and amendments were, and continued to be, prepared by what was described as the overarching Church in the United States of America. The Port Pirie Church did not prepare the manual and any amendments. There is some confusion as to which version of the manual was in force at the times that Mr and Mrs Plenty joined and re-joined the Port Pirie Church, that is, became members and had their names entered into the roll. The tenor of the manual is not expressed in terms that one would expect of a contract, and the brief references to legal proceedings appear to be designed to discourage such proceedings, and make reference to the Church creating dispute resolution mechanisms.
The Judge went on to consider, in any event, whether damages in respect of distress, anxiety and disappointment were recoverable. Following a review of the authorities, and in particular the observations of Mason CJ in Baltic Shipping Co v Dillon,[24] the Judge addressed the submissions put by counsel in the following terms:[25]
Mr Walsh QC, for the plaintiffs, argued that the fourth exception was relevant to the present case. This exception contemplates a breach of contract which leads to physical inconvenience and distress consequent upon that inconvenience: Deane and Dawson JJ at 381. The mental distress flowing from such inconvenience is compensable. An example is physical inconvenience resulting in stress following a breach of contract by a builder involving deficiencies in the construction of a home: Boncristiano v Lohmann [1998] 4 VR 82. See also Thorpe v Lochel (2005) 31 WAR 500 at pp 506–508.
In my view, there is no element of physical inconvenience in any relevant sense in the present case. Mr Walsh claimed that physical inconvenience resulted from the plaintiffs’ deprivation of the use of the church buildings and the hall. I do not accept that the plaintiffs were prevented from using the church buildings and the hall. In fact, they were invited back to take part in the life of the church after the disfellowshipping and did so for some time. I accept the evidence called by the defendant that the plaintiffs were not prevented from using the church facilities.
The fifth exception is also inapplicable. Sometimes referred to as the “holiday” cases, this exception encompasses situations where a holiday, entertainment or enjoyment is stipulated as part of the contract. There is no basis for applying this exception to the present case.
Later in these reasons, I state my conclusion that the plaintiffs have failed to prove that they suffered any recognised psychiatric disorder as a result of the circumstances surrounding their disfellowshipping. I also state my finding that the disfellowshipping has not led to any physical injury to either plaintiff. There is no evidence of any financial loss arising from these events.
It follows that, even if the plaintiffs could establish a breach of contract by the church by reason of the manner in which the disciplinary proceedings were conducted, no compensable loss has resulted.
The claim for damages based on breach of contract must fail.
[24] Baltic Shipping Co v Dillon (1993) 176 CLR 344.
[25] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [49]-[54].
As earlier observed, a person was entitled to attend the Church premises at Port Pirie to engage in worship and fellowship without being entered on the roll. Notwithstanding their disfellowshipping, and the removal of their names from the roll, Mr and Mrs Plenty were able to continue to participate in and enjoy these aspects of Church life. They did so for a considerable period following their disfellowshipping, but then elected to cease to attend.
Mr and Mrs Plenty submitted on appeal that they were shunned as a result of their allegedly impugned conduct by the Port Pirie Church, and that their further attendance became intolerable. However, there were other factors at play. Mr and Mrs Plenty were threatening legal action at that time. The earlier documents prepared by Mr and Mrs Plenty and referred to previously in these reasons, and their vociferous attacks on decisions adverse to their interests and to those making those decisions, evidence their extremely litigious disposition. One can readily understand the difficulties to which these matters would give rise in the context of social intercourse. One can understand caution on the part of other Church members and attendees having unreserved interaction with Mr and Mrs Plenty. In my view, the Judge was correct to conclude that there was no element of inconvenience in any relevant sense in the present case. Any shunning that occurred probably related to their long standing dispositions.
There is a further consideration. It was open to Mr and Mrs Plenty to have proceeded immediately after the impugned events to seek a declaration from the Court concerning the denial of natural justice, injunctive relief, and a reconsideration of the application with respect to disfellowshipping. However, they chose to not issue the within proceedings for more than two years. When they did so, they did not seek urgent injunctive or other relief. As the years moved into decades, Mr and Mrs Plenty do not appear to have made any real attempt to have the proceedings brought to trial. Whatever else may be said about the delay, the course of these proceedings evidences the absence of interest in Mr and Mrs Plenty in any immediate remedy. Rather, their conduct appears to have been to utilise the Court processes to engage in the protraction of a bitter fight for almost three decades.
Tort
The Judge when addressing the claim for damages in tort, reasoned that before a duty of care could arise, it was necessary for Mr and Mrs Plenty as a first step to establish that a recognisable psychiatric illness was reasonably foreseeable. In this respect the Judge had regard to the decision of the High Court in Tame v New South Wales,[26] and observed:[27]
[26] Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317.
[27] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [59]-[62].
The court in Tame noted that damages resulting from negligent acts were recoverable for a recognisable psychiatric injury and not for emotional distress. It was common ground in that case that:
… save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness (See, eg., White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469, per Lord Goff of Chieveley). Bearing in mind that the requirement of causation is satisfied if a defendant’s conduct is a cause of the damage complained of, and the manifold circumstances in which one person’s conduct may be a factor in inducing an emotional response in another, the consequence of imposition of such responsibility would be to impose an unacceptable burden on ordinary behaviour.
Per Gleeson CJ at [7].
See also Gaudron J at [44] and Gummow and Kirby JJ at [194].
In order for a duty of care to arise, it is necessary, as a first step, that a recognisable psychiatric illness was reasonably foreseeable. When summarising Tame’s case in Halech v State of South Australia (2006) 93 SASR 427, Besanko J commented at [121]:
The normal fortitude, sudden shock and direct perception rules have been rejected as definitive tests of liability or control mechanisms. However, they, and in particular the normal fortitude rule, will still provide assistance in determining whether, having regard to the facts, a “recognisable psychiatric illness” was reasonably foreseeable (Gleeson CJ at 333 [18] and 335–336 [29]; Gaudron J at 343–344 [62], and Gummow and Kirby JJ at 384–385 [200]–[201] and 394 [225]). It is not necessary that the particular type of disorder be reasonably foreseeable; what must be reasonably foreseeable is a psychiatric illness as commonly understood, and not necessarily whether it is an illness referred to in the DSM-IV-TR. In addition to this requirement, the plaintiff may only recover damages for a “recognisable psychiatric illness”.
In Tame’s case, Gummow and Kirby JJ at [203] referred to two other aspects which are relevant for present purposes:
Expert evidence about the foreseeability of psychiatric harm is not decisive. Such evidence cannot usurp the judgment that is required of the decision-maker. Further, it is not necessary that the particular type of disorder that eventuated be reasonably foreseeable; it is sufficient that the class of injury, psychiatric illness, was foreseeable as a possible consequence of the defendant’s conduct Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390 402–403 and 413–414.
It is appropriate at this point to consider the medical evidence led in relation to the claim that both plaintiffs suffered from a psychiatric condition caused or contributed to by the disfellowshipping.
As will be discussed shortly, the Judge concluded that it had not been proved that Mr and Mrs Plenty suffered from any psychiatric condition that was caused or contributed to by the disfellowshipping, and as a consequence the claim in tort failed. On appeal, challenge to this conclusion related to the Judge’s acceptance of Dr Blakemore’s opinions in preference to those of Dr Wurm. These reasons proceed shortly to address this complaint. In my view, there is no substance to the attack on the Judge’s rejection of the tortious claims. The claims were rightly rejected.
Psychiatric Injury
It is convenient to now address the complaint with respect to the Judge’s conclusions concerning psychiatric illness. Mr and Mrs Plenty both claimed to have suffered psychiatric illness. Medical evidence, through the tender of written medical reports, and the calling of oral evidence from Dr Wurm, was presented to the Judge. The Port Pirie Church called evidence from an examining psychiatrist, Dr Blakemore.
When resolving the issue of psychiatric illness, the Judge had available the evidence of Mr and Mrs Plenty, a body of documentary evidence, as well as the psychiatric evidence earlier referred to. The Judge reviewed the evidence and in particular the psychiatric evidence in some detail. The Judge summarised his conclusions with respect to Mr Plenty in the following terms:[28]
In summary, therefore, Dr Hutchins expressed the view in 1989 that Mr Plenty had developed a marked depressive illness, but there is nothing but a short report from him. Furthermore, he is not a trained psychiatrist.
In 1992, Dr Clayer referred to Dr Hutchins’ report but, in his own reports, he did not state his own categorical opinion that Mr Plenty was suffering from a recognised psychiatric illness or condition.
After considering all the evidence, I accept Dr Blakemore’s view that Mr Plenty was not suffering from any psychiatric illness at the time of the examinations conducted by him. Although Dr Blakemore concedes that Mr Plenty may have suffered from such a condition in the past, this is no more than a concession on something about which he was unable to express a positive opinion.
I have had close regard to the evidence of Dr Wurm that, at the time he interviewed Mr Plenty in August 2003, he diagnosed him as suffering from a major depressive illness which was consistent with the stated cause, namely, the disfellowshipping. However, I am not satisfied that Mr Plenty suffered from such an illness and, even if he did, I am not satisfied on the balance of probabilities that he suffered from such a condition as a result of the disfellowshipping which occurred approximately 27 years ago. After taking into account the whole of the evidence, including the medical evidence, I am not satisfied that the defendant’s conduct was a cause of any psychiatric illness suffered by Mr Plenty. On the other hand, the possibility that the disfellowshipping caused emotional distress to Mr Plenty is clearly open.
[28] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [101]-[104].
With respect to Mrs Plenty, the Judge again summarised the evidence and then concluded:[29]
Again, in the case of Mrs Plenty, I prefer the evidence and reasoning of Dr Blakemore. As he pointed out, although Mr and Mrs Plenty were examined by a number of doctors over the years, there is no reference to emotional problems experienced by Mrs Plenty until Dr Betty’s report of 26 May 1995.
Dr Clayer does not note anything significant about her condition. There are some references in reports regarding the stress she was under, but Dr Wurm made the first reference to Mrs Plenty suffering from a depressive disorder in his report of 30 September 2003 (P 60).
Dr Blakemore then examined Mrs Plenty in Dr Wurm’s presence on three occasions at the end of 2004 and the beginning of 2005. He said she was not suffering from any psychiatric illness, but accepted that there had been signs from time to time of emotional distress and tension.
When Dr Wurm examined Mrs Plenty in March 2006, he said that she was not suffering from a diagnosable depressive illness, but her condition then was such as to warrant a diagnosis of anxiety disorder.
Dr Blakemore disagreed with the diagnosis of anxiety disorder. He said there were no symptoms to support such a diagnosis.
In my view, Dr Blakemore researched the relevant medical history of the plaintiffs thoroughly and I accept the reasoned analysis of their respective conditions which he has provided. I accept the relevance of the comments which he made about the difficulties of assessing whether a person suffered from a psychiatric disorder so many years ago. It is just as difficult, in a case such as the present, to assign a cause or causes for such a condition.
It has not been established to my satisfaction on the balance of probabilities that Mrs Plenty suffered a recognisable psychiatric illness at any time.
[29] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [128]-[134].
Counsel for Mr and Mrs Plenty attacked the Judge’s acceptance of Mr Blakemore’s evidence. It was acknowledged that the Judge had made adverse findings considering the credibility of Mr Plenty. No challenge was made to the following observation of the Judge:[30]
I formed an unfavourable view of Mr Plenty as a witness. I have made allowance for the fact that the relevant events took place a long time ago and that Mr Plenty struggled to recall many of them. However, he frequently prevaricated under cross-examination and it became clear that he was ever conscious of the implications which his answers would have for the success of his case.
However, attention was drawn to the Judge’s conclusions with regard to Mrs Plenty, and in particular the following observations:[31]
Mrs Plenty had a good recall of events and gave an account which was generally reliable. However, although the plaintiffs have been justified in some of the causes which they have undertaken in defence of their rights, it is clear that they have lost objectivity in a number of instances. I base this solely on the evidence in the present case and nowhere is it better illustrated than in the letter dated 1 May 1978 addressed to the Deputy Commissioner of Taxation, Adelaide (D21).
The letter provides a useful catalogue of the many issues about which Mr and Mrs Plenty were complaining up to this point in time, which was shortly before the disfellowshipping. It records the stressors which the plaintiffs explained were affecting them at this time and it provides some support for Dr Blakemore’s comment concerning Mr Plenty’s resort to rhetoric during the psychiatric examinations.
[30] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [96].
[31] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson & Anor [2006] SASC 361 at [97]-[98].
The primary attack on the Judge’s reasoning was that he failed to adequately recognise that Dr Blakemore was attempting to comment on a psychiatric condition said to exist at a time much earlier than the time of his examinations. It was also argued that the Judge had failed to have regard to what was described as the attack on Dr Blakemore’s impartiality – an attack made during cross-examination. The effect of the submission on appeal was that the Judge had placed undue reliance on Dr Blakemore’s evidence in circumstances where that evidence had been discredited, and the basis of Dr Blakemore’s opinions had been undermined by the passage of time between the relevant events in the late 1970s and the time of Dr Blakemore’s examination more than 20 years later.
It was further argued that the Judge had misused the contents of the letter of 1 May 1978 written by Mr and Mrs Plenty to the Deputy Commissioner of Taxation, extracts of which have been referred to earlier in these reasons. It was argued that the letter had been admitted for limited purposes and that the contents of the letter had not been proved. Later in these reasons I deal with the challenge to the admissibility of the letter to the Deputy Commissioner of Taxation. The Judge received the letter without qualification. It was a letter signed by both Mr and Mrs Plenty and, as I later conclude, was correctly admitted without qualification. In so far as Mr and Mrs Plenty were asserting matters of complaint – and there were many – those complaints were before the Judge as being complaints made in writing, in a document signed by Mr and Mrs Plenty, and on which they were cross-examined. I agree with the Judge’s conclusions.
In my view, these submissions should be rejected. The Judge explained, in detailed and careful reasons, his acceptance of Dr Blakemore, and for his conclusion, having regard to all the evidence, that neither Mr or Mrs Plenty had established on the balance of probabilities that they suffered a psychiatric illness as a result of the conduct of the Port Pirie Church.
The findings that it had not been proved that neither Mr nor Mrs Plenty suffered a psychiatric illness were open on the evidence. My review of the evidence confirms that these findings were fully supported by the evidence and were the appropriate findings.
Physical Injury
Mr Plenty also complained that he suffered physical injury as a consequence of the actions of the Port Pirie Church. In that respect the Judge concluded that the evidence did not establish that Mr Plenty’s heart ailment resulted from stress caused or contributed to by disfellowshipping. The Judge also concluded that there was nothing in the evidence to connect any gastrointestinal problem that Mr Plenty may have to the stress caused by the disfellowshipping.
It was also claimed that Mrs Plenty had sustained ischaemic heart disease as a result of the stress due to disfellowshipping, and that she continues to be susceptible to cardiac failure as a result. The Judge concluded that the evidence failed to establish that Mrs Plenty had suffered any physical injury as a result of the disfellowshipping.
The findings of the Judge in respect of the allegation concerning physical injuries should be upheld. They were not directly challenged on appeal. They were the correct and appropriate findings on the evidence at the trial.
There are three further matters to mention on the topic of illnesses and injury. During the course of submissions, Mr and Mrs Plenty complained that the reasons for rejecting this aspect of their claims were inadequate. It was put by their counsel that the Judge had not satisfactorily explained his acceptance of Dr Blakemore and his rejection of the evidence of Mr Plenty’s treating psychiatrist, Dr Wurm. This submission should be rejected. The December 2006 reasons for judgment explain clearly and in detail how the Judge came to his conclusions and findings. The reasons have allowed Mr and Mrs Plenty to fully develop their complaints on appeal. The reasons have allowed this Court to perform its functions and discharge its duties.[32] There was no inadequacy in the depth of the reasons of the Judge.
[32] Golden Plains Fodder Australia Pty Ltd v Millard (2007) 99 SASR 461 at [20].
Alleged Trivialisation

On the hearing of the appeal, it was baldly asserted that the Judge erred in refusing discovery. The Court was referred to the material before the Judge and his reasons. The only submission advanced on appeal was that on the “factual matrix provided” an order should have been made for discovery, in the proper exercise of the Judge’s discretion.
In my view the Judge was entitled to exercise his discretion to refuse discovery. No basis has been identified to suggest that his discretion miscarried. I agree with his ruling. The only possible relevance of any policy of insurance would be to found an argument that the Port Pirie Church was not entitled to an indemnity with regard to costs, as it was under no obligation to pay costs.
In Trevorrow v State of South Australia (No 7),[39] I reviewed the authorities, and concluded that the following principles could be discerned:
- the indemnity principle is the guiding principle concerning the recovery of costs;
-the indemnity principle allows for an indemnity if there is a liability of the claimant to his or her solicitor;
- in the absence of any express agreement, the retainer of a professional person to act will normally give rise to an implied agreement for the payment of reasonable professional fees and disbursements;
- the onus is on the party seeking to avoid an order to establish that there is no liability on the part of the claimant to his or her solicitor for costs;
- the fact that the solicitor is employed by a Crown law office or some other agency or institution or corporate employer does not preclude the making of a costs order; and
- the indemnity principle is a flexible principle, designed to allow for a just and fair result.
In the present proceedings, the Court was advised that an insurer had denied indemnity under a policy of insurance. There is no basis to infer that even if indemnity had been offered, there would not be a right of subrogation in the insurer. The relevant onus had not been discharged.
[39] Trevorrow v State of South Australia (No 7) [2008] SASC 5 at [17].
The Cross-Appeal
As earlier observed, the Judge made a declaration that the disfellowshippings were null and of no effect. However, it is to be recalled that the declaration as drawn up did not strictly reflect the declaration made by the Judge.
The declaration that the Judge said he would make in the August 2003 reasons was not drawn up and sealed until 23 October 2007, following the November 2006 judgment, at the conclusion of the 2006 proceedings. Counsel acknowledged that no specific submissions were advanced on the issue of a declaration at the conclusion of the second hearing.
Counsel for the Port Pirie church submitted that the Judge had indicated his intention to make such a declaration at the end of the August 2003 hearing. However it was said that the Judge at that time was unaware of the further evidence that had been led before him with respect to the claims in contract and tort. It was pointed out that much had changed between the two hearings. In the course of the second hearing it was said that Mr and Mrs Plenty acknowledged that they had no desire or intention to return to the Port Pirie church.
It was submitted that having regard to this evidence there was no point in making the declaration as nothing would flow from the declaration.
It was further submitted that on one view the declaration allowed the conclusion that Mr and Mrs Plenty remained members of the Port Pirie church and on the roll of that church. This would open up the possibility of an assertion of membership rights, duties, privileges and responsibilities over the past three decades in circumstances where Mr and Mrs Plenty have not wished to be members and do not now wish to be members of the church. It was said in these circumstances a declaration should not have been made.
Counsel for Mr and Mrs Plenty specifically disavowed any suggestion that the declaration could lead to the conclusion that Mr and Mrs Plenty had been and remained members of the Port Pirie church. It was said that a declaration that Mr and Mrs Plenty had been denied natural justice would satisfy the claims for Mr and Mrs Plenty and could be interchanged with the present declaration.
Before coming to address these submissions it is convenient to discuss some matters of general principle.
A declaratory judgment is a formal statement by a court made with respect to a legal relationship. It does not, however, contain any order capable of enforcement. The declaratory power of the Court is said to be as old as judicial history. Its popularity flourished during the 19^th century, and more recently it has been the subject of considerable use in proceedings for judicial review.
In Ainsworth v Criminal Justice Commission,[40] Mason CJ, Dawson, Toohey and Gaudron JJ described the declaratory powers of the Court as follows:
It is now accepted that superior court have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter …by laying down rules as to the manner of its exercise” [Forster v Jododex Aust. Pty. Ltd. (1972), 127 C.L.R. 421, at p. 437, per Gibbs J]. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions [See In re Judiciary and Navigation Act (1921), 29 C.L.R. 257]. The person seeking relief must have “a real interest” [Forster (1972), 127 C.L.R., at p. 437, per Gibbs J.; Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd., [1921] 2 A.C. 483, at p. 448, per Lord Dunedin] and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” [University of New South Wales v Moorhouse (1975), 133 CLR 1, at p. 10, per Gibbs J] or if “the Court’s declaration will produce no foreseeable consequences for the parties” [Gardner v Dairy Industry Authority (N.S.W.) (1977), 52 A.L.J.R. 180, at p. 188, per Mason J.; see also p. 189, per Aickin J; 18 A.L.R. 55, at pp.69, 71 respectively].
[40] Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 581-582.
As is evident from these observations, an important aspect of the declaratory relief is that it is a flexible and discretionary remedy. It has been recognised that where a dispute has ceased to be of practical significance or has become a “dead issue”, it would be inappropriate to make a declaration. Zamir and Woolf[41] provide a number of examples where, notwithstanding the existence of a legal wrong, the Courts have declined to grant declaratory relief.
[41] Zamir and Woolf, Declaratory Judgment (2^nd Edition, 1993) at 4.07.7-4.08.4.
In Corporation of the City of Enfield v Development Assessment Commission,[42] the High Court considered the jurisdiction of this Court with respect to the granting of declarations and injunctions as alternative to relief through judicial review. Their Honours observed:[43]
Rule 98 of the Supreme Court Rules 1987 (SA) (the Rules) was considered in Craig v South Australia. Rule 98.01 provides that an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be sought by way of judicial review by summons in accordance with the provisions of that rule. Declarations and injunctions may be sought in such a summons and equitable relief of this nature may be granted if the court considers that it would be just and convenient to do so, having regard, among other things, to all the circumstances of the case (r 98.01(3)). The existence of a remedy by way of judicial review does not exclude the jurisdiction of the Supreme Court to grant other relief (r 98.01(4)).
Significant questions of public law, including those respecting ultra vires activities of public officers and authorities, are determined in litigation which does not answer the description of judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth). Examples of other vehicles are the actions for recovery of moneys exacted colore officii or paid by mistake, and those for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant as an answer to the allegedly tortious acts.
No such common law action was in issue in this litigation. Nor was the proceeding instituted by Enfield one to which r 98 of the Rules applied. The jurisdiction of the Supreme Court which Enfield invoked was its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto.
The nature of this jurisdiction was explained by Bray CJ in Attorney-General (SA) v Huber. In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, Gaudron, Gummow and Kirby JJ referred to the part played by the declaration and the injunction in the shaping of modern administrative law and continued:
“In this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.”
[42] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.
[43] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [16]-[19] (footnotes omitted).
The grant of relief may be refused where delay would make it unjust to grant the relief sought. The Privy Council in Lindsay Petroleum Company v Hurd & Ors[44] summarised the relevant principles:
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.
[44] Lindsay Petroleum Company v Hurd & Ors (1874) LR 5 PC 221 at [2].
For many years there had been debate as to whether a denial of natural justice rendered a decision void or merely voidable – see Ridge v Baldwin,[45] Durayappah v Fernando,[46] Anisminic Ltd v Foreign Compensation Commission,[47] and F. Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry.[48]
[45] Ridge v Baldwin [1964] AC 40.
[46] Durayappah v Fernando [1967] 2 AC 337.
[47] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
[48] F. Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry [1975] AC 295.
A new approach was identified by Lord Hailsham in London & Clydeside Estates Ltd v Aberdeen District Council,[49], when it was observed:
In such cases, though language like “mandatory,” “directory,” “void,” “voidable,” “nullity” and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.
[49] London & Clydeside Estate Ltd v Aberdeen District Council, [1980] 1 WLR 182 at 190 A-C. Cited by this Court with approval in Bond v Workcover of South Australia and Allianz Australia Workers’ Compensation (SA) Ltd (2005) 93 SASR 315 at [72]; R v B,MA (2007) 99 SASR 384 at [30].
More recently, the High Court has commented on the difficulties associated with the word “void”. In State of Victoria v Sutton,[50] Gaudron, Gummow and Hayne JJ commented:[51]
Windeyer J said of the term “void” that it “has never been an easy word” and pointed out that it did not necessarily mean that the void act had no legal effect at all [Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 459]. In particular, where (as here) a disposition between two parties is described as “void” at the will of a third, the preferred construction is to read “void” as “voidable” [Davis v Bryan (1827) 6 B & C 651 at 655-656 [108 ER 591 at 592]; Hughes v Palmer (1865) 19 CB (NS) 393 at 407-408 [144 ER 839 at 845]; In re London Celluloid Co (1888) 39 Ch D 190 at 203]. The submission to the contrary which was at the forefront of the appellants' submissions should not be accepted. However, in the alternative, the appellants proffered the construction which we would accept.
Kirby J addressed the question in more detail:[52]
1. The word “void” is inherently ambiguous [Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 459]. It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). “Void” is in some contexts treated as synonymous with “voidable” or voidable at the election of the party for whose benefit a legal rule makes the transaction void [Brady v Stapleton (1952) 88 CLR 322 at 333-334; Amatruda v Roberts [1938] VLR 154 at 156, per Gavan Duffy J; cf the opinion of Priestley JA (with whom Clarke JA concurred) in National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213 at 218. The context requires a result different from that which I there expressed (at 214). In a contractual context, see Raysun Pty Ltd v Taylor [1971] Qd R 172 at 181; Carpentaria Investments Pty Ltd v Airs [1972] Qd R 436 at 441]. The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances [Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 423]. It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word “void” presents a problem of statutory construction. There is no settled meaning [This is partly because the word may arise in so many different contexts. See, eg, In the Marriage of Teves and Campomayor (1994) 122 FLR 172 at 176-177; 18 Fam LR 844 at 849; [1995] FLC ¶92-578 at 81,734-81,735, dealing with the meaning of “void” in the Family Law Act 1975 (Cth)].
2. When the context of the word in the Order is examined, it is relevant to take into account, most especially, the words which immediately follow the word “void”.
[50] State of Victoria v Sutton (1998) 195 CLR 291.
[51] State of Victoria v Sutton (1998) 195 CLR 291 at [38].
[52] State of Victoria v Sutton (1998) 195 CLR 291 at [95].
In the subsequent decision of Minister for Immigration and Multicultural Affairs v Bhardwaj,[53] when dealing with jurisdictional error on the part of an Immigration Tribunal, Gaudron and Gummow JJ observed:
In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as “void”, “voidable”, “invalid”, “vitiated” or, even, as “nullities”. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term “appeal” and the proposition that an administrative decision must have sufficient vitality to provide the subject matter of such a curial proceeding should not obscure the fundamental proposition that such an “appeal” or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned [See Steele v Defence Forces Retirement Benefits Board (1955) 92 CLR 177 at 185-188, per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ; Walsh v Law Society (NSW) (1999) 198 CLR 73 at 90 [50], per McHugh, Kirby and Callinan JJ; at 103 [83], per Gummow J.]
[53] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [46].
Kirby J observed that treating a decision as null and void, in that it becomes no decision at all, causes the problem that it becomes difficult to see how “no decision at all” could have supported the appeal or proceeding by way of judicial review that declared the decision null and void.[54] The solution to this problem is to treat, under what is called the “relative theory of invalidity”, the decision as valid and effective unless and until it is retrospectively invalidated.[55] This is subject, of course, to the language and implied operation of the particular legislation under which the decision was made.[56]
[54] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [101]-[102], citing Calvin v Carr [1980] AC 574 at 589-590.
[55] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [103], citing Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277.
[56] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [112], [121]-[122].
Hayne J addressed the problem in the following terms:[57]
In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction [Cameron v Cole (1944) 68 CLR 571 at 590-591, per Rich J; at 606, per Williams J; DMW v CGW (1982) 151 CLR 491 at 504-505, per Gibbs CJ; Ousley v The Queen (1997) 192 CLR 69 at 107, per McHugh J; at 129-130, per Gummow J; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178 [20]-[23], per Gleeson CJ; at 235-236 [216], per Gummow J; at 274-275 [328]-[329], per Hayne and Callinan JJ]. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues [See, eg, Director of Public Prosecutions v Head [1959] AC 83]. If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid [Ousley (1997) 192 CLR 69 at 130-131, per Gummow J; Hoffmann-La Roche v Trade Secretary [1975] AC 295 at 365; Campbell, “Inferior and Superior Courts and Courts of Record”, Journal of Judicial Administration, vol 9 (1997) 249, at p 258]. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. For that reason, there is no useful analogy to be drawn with the decisions of the Court concerning the effect of judgments and orders of the Federal Court of Australia made in proceedings in which that Court had no constitutionally valid jurisdiction [Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; Re Macks; Ex parte Saint (2000) 204 CLR 158].
This is not to adopt what has sometimes been called a “theory of absolute nullity” [Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed (2000), pp 494-501, 504] or to argue from an a priori classification of what has been done as being “void”, “voidable” or a “nullity”. It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised. As Dixon J said in Posner v Collector for Inter-State Destitute Persons (Vict) [(1946) 74 CLR 461 at 483]:
“[W]hen a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so ...
When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.” (Emphasis added.)
[57] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [151]-[152].

Aronson and Dyer[58] provide the following commentary:
The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Even a so-called bare declaration of invalidity amounts to more than just a snapshot of the void; it establishes voidness with an authority which the bureaucracy does not dispute [Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 at 664]. Further, the court will uphold a challenge to the validity of an impugned decision only if it is made by a person with standing, who applies by the right procedure to the right court, within the time limited for making the challenge, and against whose application there is not discretionary reason for refusing a judicial remedy. Lord Hailsham in London & Clydeside Estate Ltd v Aberdeen District Council [[1980] 1 WLR 182 at 189-190; and Minister for Immigration and Ethnic Affairs v Bhardwaj [1999] FCA 1806] acknowledged the convenience of terms such as terms such as “nullity”, “void” and “voidable”, but said that they did not represent starkly antithetical and rigid categories. In every case, he said, the court’s real problem (where the ground of challenge has been made out) is to determine the legal consequence of the illegality.
[58] Mark Aronson and Bruce Dyer, Judicial Review of Administration Action (2nd Edition, 2000) at 499. This text was cited with approval in Minister for Immigration & Multicultural Affairs v Bhardwaj [1999] FCA 1806 at [18] (Madjwick J) and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [152], footnote 202 (Hayne J). See also Mark Aronson and Bruce Dyer, Judicial Review of Administration Action Action (3rd Edition, 2004) at p.618ff and Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (4th Ed, 2009) at [10.85]ff.
In the present case, the Judge indicated in the course of his March 2003 reasons for judgment that he would make a declaration. It does not appear that there were submissions made as to whether the breach of natural justice as found by the Judge rendered the disfellowshipping void or voidable.
It is relevant to observe that notwithstanding the Judge’s indication that he would make a declaration, there was no application made by Mr and Mrs Plenty for the judge to formally make that declaration and to then have the declaration drawn up, sealed as a declaration of the Court, and served. Nothing happened in that regard until the delivery of the December 2006 reasons.
These circumstances allow the conclusion that Mr and Mrs Plenty saw no practical utility in the making of the declaration. There is no suggestion that they considered that their disfellowshipping, by reason of the declaration, had been deemed to be an event that had not occurred. There was no suggestion that they had remained members of the Port Pirie Church from 1979 once the declaration was made. There was no suggestion that they wished to be treated as members of the Church throughout that period, or at any time within that period. There was no suggestion that they wished to be under the duties and obligations of a member of the Port Pirie Church, or to have the privileges and benefits of such membership. This is unsurprising given the history of the matter and the unconscionable delays.
As earlier discussed, following the delivery of the March 2003 reasons, the claims of Mr and Mrs Plenty were amended and the matter proceeded to a second hearing with respect to the claim for damages in contract and tort, and for what was said to be the loss of proprietary rights. In the course of the second hearing, Mr and Mrs Plenty gave evidence. At this time, some three years after the trial judge had indicated that he would make a declaration, Mr Plenty gave evidence that there had been no attempt for Mr and Mrs Plenty to return to the Port Pirie Church, and that there was no suggestion that they would do so.
On appeal to this court, counsel for the Port Pirie Church acknowledged the inadequacy of the Church’s submissions made to the trial Judge, but submitted that it remained appropriate for this Court to set aside the declaration having regard to the following circumstances:
-Mr and Mrs Plenty had not attended the Port Pirie Church for more than 25 years and had no present or future intention to do so;
-Mr and Mrs Plenty’s failure to seek any injunctive relief and to prosecute their claim, demonstrated that the issue was of no practical significance and in that sense was well and truly dead;
-There was a genuine issue as to whether the denial of natural justice that occurred rendered the decision of the Port Pirie Church void or voidable. If void and void ab initio, then it would follow that Mr and Mrs Plenty had been and remained members of the Port Pirie Church and on the Church roll since their removal in the late 1970s. If voidable and no further action was to be taken, then Mr and Mrs Plenty ceased to be members from the time of their removal;
-As discussed above, counsel for Mr and Mrs Plenty on the hearing of the appeal accepted that the declaration did not have the effect of reinstating Mr and Mrs Plenty to membership of the Port Pirie Church and the re-entering of their names to the Church roll. This would appear to be an acceptance that the denial of natural justice only rendered the disfellowshipping voidable.
These considerations have led me to conclude that the declaration made by the Judge should be set aside. The findings in the March 2003 reasons identify the denial of natural justice that occurred and those reasons have been and will remain publicly available to record the legal wrong suffered by Mr and Mrs Plenty. A declaration with respect to the denial of natural justice is no longer necessary because of the matters set out above. There was no suggestion on the hearing of the appeal that Mr and Mrs Plenty wished to have their names reinstated on the roll. Evidence to support the lack of any inclination on the part of Mr and Mrs Plenty is to be found in the gross delays in their prosecution of the proceedings, in their past, present and future non-attendance at the Port Pirie Church, their non-attendance since the foreshadowing of the making of a declaration by the judge in his March 2003 reasons, and their evidence at the second hearing. The cumulative effect of these matters disentitled Mr and Mrs Plenty to equitable relief.
Conclusion
I would dismiss the appeal. I would allow the cross-appeal and set aside the declaration made by the trial Judge.
VANSTONE J: I agree that the appeal of Mr and Mrs Plenty should be dismissed. In my view none of the grounds of appeal has been made out.
I make particular mention of ground 8 which complains of the admission into evidence of a letter addressed to the Deputy Commissioner of Taxation, dated May 1, 1978, and signed by Mr and Mrs Plenty. The relevant ground of appeal is as follows:
8.The learned Trial Judge erred in utilising an exhibit D21 being a letter from the appellants to the Deputy Commissioner of Taxation dated 1 May 1978 to assess the credibility and objectivity of the appellants when the exhibit was agreed to be used to access the range of stressors experienced by the appellants and not for the purposes of examining the truth or falsity or factual bases of the contentions set out in the said exhibit.
The only submission in support of the ground was in the written outline of argument. There it was asserted that it was agreed during the course of the trial that the letter “would be admitted and could be cross-examined upon solely for the purpose of examining the issue of stressors acting upon” Mr and Mrs Plenty at various times. It was further put that there was “no examination which took place nor proof offered of the facts asserted in the letter”.
As will appear, in my view this argument is misconceived. The transcript of the trial reveals that both Mr and Mrs Plenty were extensively cross-examined about this letter. In the case of Mrs Plenty that cross-examination occurred over transcript pages 204 to 217. In the case of Mr Plenty the cross-examination appears at pages 838-863. The letter itself runs to some twelve and a half pages of closely typed text. It purported to be an objection lodged “under section 185 of the Income Tax Assessment Act”. It contained both narrative and comment about various events and persons going back many years. It is peppered with serious allegations made against various high-ranking office holders, including a former Attorney-General for Western Australia, senior public servants and judicial officers. There are numerous allegations of corruption, persecution and general dishonesty against various such persons.
Cross-examining counsel used the letter to demonstrate the breadth of issues which had plainly caused huge anxiety to Mr and Mrs Plenty over many years. Having cross-examined Mrs Plenty on a number of aspects of the letter, counsel tendered it. At that point counsel for Mr and Mrs Plenty, while not objecting, raised a question as to the purpose for which it was being tendered. It was not put to the judge that counsel had reached any agreement as to restricting the use of the letter. Any such agreement would not have bound the court anyway. The letter was admitted, and, in my view, correctly so. The judge made no remark as to any limitation on use of the exhibit. I consider it was relevant, not only to other battles which Mr and Mrs Plenty were waging on various fronts over an extended period of time, but also to their credibility, their perception of events and to their habit of imputing malice to others. Contrary to the assertion in the ground of appeal, it was not sought to be used to demonstrate the truthfulness of the assertions made by Mr and Mrs Plenty within it, but rather to demonstrate an attitude of mind which pervaded their dealings with numerous public office holders.
The learned trial judge used it as bearing on the objectivity of Mr and Mrs Plenty. He said, at [97]:
However, although the plaintiffs have been justified in some of the causes which they have undertaken in defence of their rights, it is clear that they have lost objectivity in a number of instances. I base this solely on the evidence in the present case and nowhere is it better illustrated than in the letter dated 1 May 1978 addressed to The Deputy Commissioner of Taxation, Adelaide (D21).
I consider the letter was plainly relevant and the use made of it by the judge was unexceptional.
I agree that all other grounds of the appeal should be dismissed. As to those grounds, I agree in broad terms with the reasons given by Gray J. I am content to acquiesce in the setting aside of the declaration.
ANDERSON J: I agree that the appeal should be dismissed and that the cross‑appeal be allowed. I agree with the reasons of Gray J.