Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie

PLENTY & PLENTY v SEVENTH-DAY ADVENTIST CHURCH OF PORT PIRIE
[2002] SASC 68
Civil

DUGGAN J. The plaintiffs, who are husband and wife, commenced these proceedings against the defendant church as a result of being disfellowshipped from the church on 1 December 1979. They seek a declaration that they were denied natural justice in the course of the proceedings which led to their disfellowshipping and that the disfellowshipping is null and void. They also claim damages. The issue of damages has been deferred pending determination of liability.
The plaintiffs became members of the church in November 1958. At all relevant times they have lived at Napperby near Port Pirie. The church is situated at Pt Pirie. At the time of these events there were 47 members on the church roll. The plaintiffs were active in church affairs. In particular, Mrs Plenty became superintendent of the Adult Sabbath School in 1978 and she was made a deaconess. This qualified her to assist in various ways during church services. Both Mr and Mrs Plenty assisted in the construction of a new church hall.
It is necessary at the outset to refer to two matters which were of relevance in the events leading to the plaintiffs’ disfellowshipping. The first concerned a dispute which arose between the plaintiffs and a number of other members of the church. Up until the time shortly before Mrs Plenty assumed the role of superintendent of the Sabbath school the classes for that school were conducted in the back room of the church. Persons attending the classes used an internal door to go from the church into the back room. However, on the last day on which Mrs Plenty’s predecessor held office as Sabbath School Superintendent he issued a direction that access to the back room was to be from an outside door and not the internal door. The reason which Mrs Plenty was later given for this direction was that the pulpit and the baptismal font were located underneath a false floor in the church and that people walking from the church through the internal door to the back room were walking over, or at least near, these sacred parts of the church.
Mrs Plenty disagreed with this decision and the issue was debated within the church. Mr Plenty joined his wife in her opposition. The matter came before a church business meeting on 22 July 1978 and the meeting voted in favour of the requirement that the back door was to be used to gain access to the meeting room. This dispute simmered for some time and Mr and Mrs Plenty resigned from all positions held by them in the church. They also wrote to Pastor Cobbin, the President of the Seventh-Day Adventist Conference in Adelaide requesting his intervention. Eventually, Pastor Cobbin went to Port Pirie to discuss the matter and, in July 1979, a church business meeting voted to rescind the earlier decision so as to allow the internal door to be used in order to gain access to the back room.
The second event concerned a charge laid against Mr Plenty for assaulting a police officer. The charge arose out of an incident which is alleged to have occurred when two police officers went to the plaintiffs’ farm in October 1978 to serve a summons on one of their children. The police officers claimed that Mr Plenty ordered them from his property and assaulted one of the officers. Mr Plenty was convicted of assault, but appealed against the conviction. In the meantime, Mr Plenty took action against the police officers for assault and trespass arising out of the same incident. Mr Plenty was unsuccessful in this action both at first instance and on appeal to the Supreme Court. However, he appealed to the High Court which decided in his favour on the ground that, at common law, a police officer intending to serve a summons is not authorised, without the consent of the person in possession of the land and without any implied leave or licence, to go onto the land to serve the summons.
In August 1979 it was reported in the Port Pirie Recorder that Mr Plenty had been found guilty of the assault. This was at a time when the conviction was under appeal. Then, on 29 August 1979, Mr Plenty wrote a letter to the editor of the Recorder commenting on the earlier report and criticising the magistrate for deciding against him. He also made general criticisms of the justice system. In addition, the plaintiffs placed a notice in the Recorder on 24 October 1979 which stated that the conviction against Mr Plenty was the subject of an appeal and the official transcript of evidence provided by the court had been altered in a manner unfavourable to him.
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 disfellowshiping 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:
1To enable the church to express its disapproval of a grievous offense that has brought disgrace upon the cause of God.
2To 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:
1Denial of faith in the fundamentals of the gospel and in the cardinal doctrines of the church or teaching doctrines contrary to the same.
2Open 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.
3Fraud or wilful misrepresentation in business.
4Disorderly conduct which brings reproach upon the cause.
5Adhering to or taking part in a divisive or disloyal movement or organization. (See pp 243, 244, ‘Self-appointed Organizations’).
6Persistent refusal to recognize properly constituted church authority or to submit to the order and discipline of the church.
7Instigating 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) [1]
8The use, manufacture, or sale of alcoholic beverages.
9The use of tobacco or addiction to narcotic drugs.”
[1] At the 52nd session of the General Conference in Vienna, Austria, when this section of the Church Manual was revised, the church was seeking to reaffirm its commitment to the desirability of the settlement of problems that might be taken to civil courts, within the guidelines given by Paul in 1 Cor. 6:1-7 and as appearing also in Spirit of Prophecy counsels. For this reason it was considered necessary by the session that this paragraph should stand as it appears here in this section on reasons for disciplining church members. However, it was also considered necessary that further study be given to the whole question of litigation between church members and between church members and the church and/or its organizations or institutions and vice versa. The session therefore took action asking the General Conference Committee to arrange for such study with a view to the inclusion in the Church Manual of a fuller statement on litigation. When adopted this statement will probably be included at a place other than this section on the reasons for disciplining church members.
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.”
I turn then to the events immediately associated with the proceedings which were taken against the plaintiffs within the church. At a board meeting which was convened on 19 November 1979, the board voted in favour of a recommendation to the next church business meeting that the names of Mr and Mrs Plenty be removed from the church roll.
A further board meeting was held on 25 November 1979. At this meeting the decision taken at the previous Board meeting was rescinded after it was pointed out that the Board had no power to make such a recommendation. The following resolution was substituted:
“Moved Name of Bro Syd Plenty be brought into question at forthcoming Business meeting on Dec 1st for the following reason –
1)     disorderly conduct which brings reproach upon the cause.
2)     wilful & habitual falsehood
a)     Convicted of attempted assault on a police-officer.
b)     Subsequent correspondences relating to above as appearing in local papers.
3)persistent refusal to recognise properly constituted Church authority or to submit to the order & discipline of the Church.
a)     Church Board letters.
Seconded and carried.”
Another resolution was passed in relation to Mrs Plenty. It stated:
“Moved that name of Sis D Plenty to be brought into question at forthcoming Business meeting on Dec 1st for the following reason –
1)     wilful and habitual falsehood.
a)     false statements made at time of Bro S Plenty’s court case.
b)     subsequent correspondences relating to the said court case as appearing in local papers.
2)persistent refusal to recognise properly constituted Church Authority or to submit to the order & discipline of the Church.
eg:- Church Board letters.”
Following the board meeting of 25 November, separate letters were forwarded to the plaintiffs. The letters stated that the church membership of Mr and Mrs Plenty would be “brought into question” at a church business meeting to be held on the following Saturday 1 December 1979. The letters set out the resolutions passed at the board meeting of 25 November as constituting the reasons for this course of action. They also stated that the plaintiffs had the opportunity to be heard in their defence.
It was common ground at the hearing before me that the plaintiffs had no warning prior to the receipt of the letters of 26 November that these allegations of misconduct would be made against them. Mr Plenty said that after they received the letters they asked Mr Bonnin, a board member, what the allegations were about. He said he could not talk to them about the matter. They also said they spoke to Pastor Burton, who was acting in the position of the pastor of their church, about the allegations. According to the plaintiffs, Pastor Burton said that if they wanted to know anything about the matter they would have to write to the board. Both plaintiffs said that they were unaware of the details of the allegations made against them beyond what was in the letters. They were unsure of the implications of the statement that their church membership would be “brought into question”.
The plaintiffs said they received the letters on the afternoon of Tuesday 27 November. Prior to receiving these letters, the plaintiffs had made an appointment to see Mr Scragg, the solicitor who was acting for Mr Plenty in relation to the appeal against his conviction which was to be heard in a few days time. The plaintiffs said they came to Adelaide to see Mr Scragg and, in the course of the discussion with him, they showed him the letters which they had received the previous day. According to Mrs Plenty, Mr Scragg said “They can’t do that to you … that’s not right. It’s in contempt of court”. Mr Plenty also said in evidence that Mr Scragg told them “They can’t do that to you”. He could not recall if Mr Scragg added that the matter was sub judice, although he said in his evidence that Mr Scragg said something to the effect that the church could not proceed in the matter because it was the same as the matter in which he was acting for the plaintiffs. According to Mr Plenty, Mr Scragg also said that he would contact the President of the South Australian Conference of the Seventh Day Adventist Church, Pastor Cobbin and speak to him about the matter.
Mr Scragg was called by the defendant. He explained that he was a member of the Seventh Day Adventist Church. He said he had a vague recollection of a discussion with the plaintiffs about the move to have them disfellowshipped. He said he was able to say from a diary entry that the plaintiffs came to see him in Adelaide on 28 November 1979 and it is likely that there was some discussion about their membership of the church on that date. He stated it was unlikely that he said he would speak to Pastor Cobbin about the matter. He said he had no recollection of advising the plaintiffs in relation to the disfellowshipping. Mr Scragg agreed in cross-examination that it is possible he said “look they can’t do that” in the course of discussion with the plaintiffs about their church membership.
It is understandable that Mr Scragg would have only a vague recollection of this meeting. However, the plaintiffs had come to Adelaide to speak to him about the appeal in the assault matter which was due to be heard shortly and I have no hesitation in accepting their evidence that they told him about the pending disciplinary proceedings which were at the forefront of their minds at the time. I also accept the evidence of the plaintiffs, in particular Mrs Plenty whose evidence on this point I regard as accurate, that Mr Scragg expressed the view that it was wrong for the church to go ahead with the disciplinary proceedings while the appeal was pending.
The plaintiffs responded to the letters from the church by writing to their fellow members on Wednesday 28 November in the following terms:
“We are deeply shocked and stunned at the irresponsible actions of the Church Board in these letters to us, for them to make such false statements, which are extremely libellous.
You should be aware that the matter of the assault charge is at present before the Supreme Court of South Australia, and therefore, it is not possible, (because of subjudice (sic)), for us to make any comments, or defend ourselves in any way before this meeting, as this would be in contempt of Court.
Also, we draw your attention to Chapter 13 of the Seventh-Day Adventist Church Manual, and we are of the opinion that there is a clear violation of this chapter and of God’s instructions in Matthew Chapter 18 verses 15 and 16, which leaves the Church Board’s actions in contempt of God and the Church.”
Extracts from Matthew Chapter 18 are set out Chapter 13 of the manual. The manual states that in dealing with erring members, the instructions in Matthew Chapter 18 are to be followed. The relevant text as it is quoted in the manual is as follows:
“Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou has gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as an heathen man and a publican. Verily I say unto you. Whatsoever ye shall bind on earth shall be bound in heaven: and whatsoever ye shall loose on earth shall be loosed in heaven. (Matt. 18: 15-18).”
Pastor Burton, spoke to the plaintiffs on 27 November and 30 November 1979. There is a dispute as to what was said on each occasion. Pastor Burton stated in evidence that the plaintiffs were advised of certain particulars in relation to the charges, although the details of the conversations deposed to in evidence by him are somewhat vague. The plaintiffs said they were not given additional particulars of the charges. Mr Plenty reasserted to Pastor Burton that it would be wrong for the plaintiffs to attend the church business meeting when the assault charge referred to in the letters from the church was still before the courts. I will return to deal with the versions given by the witnesses in relation to these conversations later in these reasons.
Pastor Cobbin, the President of the South Australian Conference of the Seventh Day Adventist Church, went to Pt Pirie for the church business meeting which was to be held on Saturday 1 December. At some time prior to the business meeting he had received advice that it was inappropriate to allow the assault allegation to be considered by the church when there was an appeal pending against the conviction. Pastor Cobbin gave evidence that he requested Pastor Burton to tell the plaintiffs that this allegation would not be relied upon in the church proceedings. Pastor Burton denied being given this direction. However that may be, the Plentys were not told of this development. At all times prior to the meeting they were under the impression that the assault issue would be raised.
In accordance with their intimation to the members of the church, the plaintiffs did not attend the church business meeting on 1 December. Pastor Cobbin said that prior to the meeting he recommended that the allegations be narrowed to those contained in a draft which he suggested. In accordance with this recommendation the allegations against each plaintiff were altered to read:
“Disorderly conduct which brings reproach upon the cause of God eg. letters written to the newspapers containing exaggerated accusations.
Attitude toward those in authority.”

The plaintiffs were unaware of the revised charges until after the meeting at which they were disfellowshipped. At the meeting held on 1 December the members voted to remove the plaintiffs’ names from the roll for the above reasons. The disciplinary procedure set out in the manual does not provide for an appeal against a decision to disfellowship, although the proceedings against the plaintiffs were the subject of an investigation by an ad hoc committee after the decision had been made. The committee reached the conclusion that the disciplinary procedures had been carried out properly.
The plaintiffs allege that they were not given adequate particulars of the charges and that there was insufficient time to prepare a defence. They said in evidence that they genuinely believed it would be wrong for them to attend the church meeting when an important allegation against Mr Plenty was based on a conviction which was the subject of an appeal to be heard in less than a week. One of the allegations against Mrs Plenty was also linked to the assault matter. They complained that they were not advised of the eventual decision to narrow and revise the charges. They also complain they were given no opportunity to make submissions on penalty.
The plaintiffs were advised by letter dated 2 December 1979 that their membership of the church had been terminated for disorderly conduct which brings reproach upon the cause of God and “attitude towards those in authority”. The letter went on to state that, despite being disfellowshipped, the plaintiffs were welcome to attend the church and worship and they were encouraged to put their lives in order.
The plaintiffs commenced the present proceedings on 28 June 1982.
There is an issue which should be addressed at the outset, namely, whether it is open for this court to grant the relief sought.
It was argued on behalf of the defendant that the requirements of natural justice as recognised and enforced by the courts have no application to the disciplinary proceedings under consideration in the present case. Reliance was placed on Cameron v Hogan (1934) 51 CLR 358, a decision which limits the circumstances in which review of decisions by voluntary non-statutory associations will be undertaken by the courts.
In Cameron v Hogan the respondent took action against the Victorian Central Executive of the Australian Labor Party complaining of the actions of its members in reference to the performance of endorsement procedures for a parliamentary election and their decision to expel him from the party. He sought a declaration that his expulsion and non-endorsement were wrongful. The High Court held that the respondent was not entitled to the relief sought as he had no proprietary right or interest in the property of the association as would enable him to a declaration in respect of these matters and, further, that the rules of the association did not operate to create enforceable contractual rights and duties between members, or between executive officers and members. Dixon, Evatt and McTiernan JJ said (378):
“The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.”
Starke J observed that the courts do not, as a general rule, interfere in the internal affairs of voluntary associations, societies or clubs and quoted the following passage from Murdison v Scottish Football Union (1896) 23 R (Ct of Sess) 449 at pp 466, 467:
“Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property.”
The argument advanced in the present case that the plaintiffs’ complaint is not justiciable formed the basis of an application to strike out the statement of claim in the proceedings before this court in 1986. A master refused the application to strike out, but his decision was reversed on appeal to a single judge. The master’s order was restored on appeal to the Full Court (Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121).
In the Full Court Jacobs J held that Cameron v Hogan could be distinguished on the basis that, in the present case, injury to reputation was involved. He was also of the view that it was at least arguable that the members of the defendant church contemplated the creation of legal rights inter se, or as between a member and the church.
Matheson J was of the view that the plaintiffs might ultimately succeed at trial on the basis of one or more of three considerations which he identified as injury to reputation, consensual compact and proprietary interest. In relation to proprietary interest he pointed out that the plaintiffs in their baptismal vow promised to support the church and did so through the payment of tithes and other offerings. These funds were used for church buildings and a recreational hall. Olsson J referred to the dictum in Murdison v Scottish Football Union which is quoted above and pointed out that, in the present case, the plaintiffs assert both injury to reputation and a denial of their enjoyment to church recreational property.
As I have pointed out, the Full Court was dealing with an application to strike out a pleading. It goes without saying that the decision is not decisive of the ultimate result with respect to this issue. However, the judgments highlight the various circumstances which are capable of taking a case outside the general rule referred to in Cameron v Hogan.
In my view, the assertion in the present case of injury to reputation is of particular relevance. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 the following passage appears in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ:
“It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel M.R. said in Fisher v Keane (1879) 11 Ch D 353 at pp 362-363:
‘according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man’s reputation for ever – perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct.’
And, as recently as 1990, Brennan J said in Annetts (1990) 170 CLR at p 608 that:
‘Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.’
The same is true of business or commercial reputation (See In re Pergamon Press Ltd [1971] Ch at pp 399-400; Mahon [1984] AC at p 820). And it matters not that, instead of an express finding there is, as here, an adverse recommendation based on the reports of other bodies or authorities.”
See also Cornal v AB (A Solicitor) [1995] VR 372 at 394; Kioa v West (1985) 159 CLR 550 at 582, 618 and Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 512).
In determining whether, in a particular case, the rules of natural justice will be applied by the courts it is appropriate to bear in mind the further remarks in the joint judgment in Ainsworth’s case (576):
“It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may ‘destroy, defeat or prejudice a person’s rights, interests or legitimate expectations’ (Annetts v McCann (1990) 170 CLR 596 at p 598, per Mason CJ, Deane and McHugh JJ.). Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.”
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 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.
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 disfellowshiping.
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.
In the course of final addresses Mr Walsh QC, for the plaintiffs, drew attention to a purported abandonment of any argument in relation to the issue of justiciability. This concession was made in an affidavit sworn by the defendant’s solicitor on 20 February 1997 when the matter was before Lander J who had been assigned as trial judge. The plaintiffs took objection to Lander J presiding over the trial because he had been counsel when the argument as to justiciability took place before the single judge in 1986. The defendant made the concession in order to remove this obstacle to Lander J presiding at the trial.
Neither Mr Walsh nor Mr Kourakis QC, for the defendant, were aware of this concession until it was brought to their attention by the instructing solicitor for the plaintiffs in the course of closing addresses.
I have reached the conclusion that, despite the earlier purported abandonment of the argument, it remained a live issue. The question relates to the jurisdiction of the court in respect of the subject matter of the litigation and consent in these circumstances cannot give jurisdiction (Yirrell v Yirrell (1939) 62 CLR 287 at 295).
The allegation of lack of adequate particulars is a crucial aspect of the plaintiffs’ case. Although the charges were reduced eventually in the manner to which I have referred, it is important to have regard to the entire history of the laying of the charges. The first allegation made against Mr Plenty in the letter dated 28 November was that he engaged in “disorderly conduct which brings reproach upon the cause”. The letter gave no indication whether this involved a single incident or a series of incidents. No doubt, there are many ways in which reproach can be brought upon the cause of God, but the basis of this particular complaint was not stated in the letter.
The second charge against Mr Plenty was one of wilful and habitual falsehood. It will be noted that this category of conduct is referred to in the manual as an instance of “open violation of the law of God”. The examples of such conduct alleged against Mr Plenty were set out in the letter and consisted of being convicted of an assault on a police officer and subsequent correspondence relating to that matter in local papers. It is not clear how the conviction for assault could come within the description of wilful and habitual falsehood.
The final allegation against Mr Plenty referred to persistent refusal to recognise properly constituted church authority or to submit to the order and discipline of the church. The only indication of instances of this broad allegation was contained in the words “eg: - Church Board Letters”. The individual letters were not specified.
In the letter to Mrs Plenty she also was accused of wilful and habitual falsehood. The first particular given in relation to this allegation was that she made false statements at the time of Mr Plenty’s court case. The alleged false statements were not set out in the letter, nor was there any reference to the circumstances in which it was alleged that they were made. The further instance of wilful and habitual falsehood which was alleged against her was said to relate to subsequent correspondence relating to the court case in the local papers. The comments which I have made in relation to the same allegation against Mr Plenty apply also in the case of Mrs Plenty.
The other matter alleged against Mrs Plenty was persistent refusal to recognise properly constituted church authority or to submit to the order and discipline of the church. Again, the only particulars which were given were expressed in the words “eg:- Church Board Letters”. The use of the abbreviation “e.g.” in paragraphs 2 and 3 suggests that other unspecified instances of such breaches might have been contemplated.
I have said that on the plaintiffs’ case no further particulars of any significance were provided to them. The defendant claims that some particulars were provided in the course of conversations between Pastor Burton and the plaintiffs. I now turn to the evidence relating to those conversations.
Reference has been made to the fact that the plaintiffs received the letters advising them of the charges on the afternoon of Tuesday 27 November. Mr Plenty said they asked several church members how it came about that the board had recommended the action identified in the letter. However they said that the persons to whom they spoke were not prepared to provide information or details about the allegations.
The plaintiffs also spoke to Pastor Burton at his home on the Tuesday. Mrs Plenty said the meeting lasted approximately 10 minutes. According to her, the plaintiffs told Pastor Burton they were shocked at receiving the letter containing the allegations and they wanted to know what it was all about. She said Pastor Burton told them that he was not at liberty to divulge this information. Mr Plenty then told Pastor Burton that the assault allegation was under review in the courts and they could not go to the meeting while the case was under review. Pastor Burton said he would let the Board know that this was their attitude and get back to them. In his evidence Mr Plenty said it was a short meeting and Pastor Burton stated that he could not assist him and his wife with any details of the charges.
Pastor Burton gave evidence of his version of the meeting. He said that Mr and Mrs Plenty brought the letters around to him on the afternoon of 27 November. He said they wanted to know “exactly what all of these different parts of the letter were all about”. According to Pastor Burton he told them that the disorderly conduct charge related to various newspaper articles which had appeared in the local newspaper. He said he may not have referred to specific articles, but that Mr Plenty knew what he meant because the articles had been discussed between them before. Although the articles were not identified, Pastor Burton said in evidence that there were probably about six articles.
I should point out that there is vagueness, even at this stage, as to what articles and letters to the newspaper were being used to support the various allegations. As I have mentioned, correspondence with the newspaper after the court case was referred to in the letter dated 28 November to support a different allegation, namely, wilful and habitual falsehood. The only other item of media correspondence tendered before this court was an open letter to the member for Grey which was published in May 1977. It called for a Royal Commission into the aftermath of an incident in which the plaintiffs were involved nine years before the publication of the letter. Criticisms were also made of the justice system, the police, the law society, the taxation department and politicians.
Pastor Burton said that he advised Mr Plenty that the wilful and habitual falsehood charge related to the conviction of Mr Plenty for attempted assault on a police officer. No explanation was given as to how the conviction could constitute a falsehood. He said he told Mr Plenty the other aspect of the charge of wilful and habitual falsehood related to two newspaper articles which Mr Plenty wrote after his conviction. He said the Plentys probably asked him for more detail in relation to the articles, but he could not recall his response. I find that no attempt was made on this occasion to explain what aspects of the letter and the advertisement were alleged to be falsehoods.
Pastor Burton said he went on to explain that the allegation of persistent refusal to recognise properly constituted church authority or to submit to the order and discipline of the church related to the attitude which the Plentys had expressed to the church in their letters to the board. I find that no further details concerning this allegation were given to the plaintiffs. Even on Pastor Burton’s version, they were told little more than what was in the letters informing them of the allegations. Pastor Burton said that at this meeting Mr Plenty gave no indication that he would not attend the church business meeting and he did not mention the fact that his case was before the court.
Pastor Burton was asked about the phrase used in the letters “being brought into question”:
“QWhat I want to know is whether by the phrase ‘being brought into question’ you understood that to mean that this was a formal charge and they were going to be formally charged in respect of some alleged transgressions in the church or whether the phrase was something less than that, that is to say, that they should be spoken to because their names were mentioned and the matter discussed with them?
AIf I could answer it this way. When Syd and Deanne came and visited me on 27 November and I went through this with them I said to them that the board just wants to ask them certain questions in regards to some of these matters. I don’t know if that answers your question or not.”
In cross-examination Pastor Burton said that this conversation took approximately 40 minutes. He said:
“I never gave them every specific of everything. I told them, like I said before, that there were certain questions that the church wanted to ask to clear some of the matters up here. There’s no doubt about it that they had a general understanding of certain things in regards to each one of those things. For instance, when you take the thing about Syd’s conviction, what does one say about that? It’s just there.”
He agreed that he did not identify for Mrs Plenty the false statements she was alleged to have made at the time of Mr Plentys court case, but instead told the plaintiffs that there were certain questions the Board wanted to ask them.
He said in evidence before me that the complaint about the false statement allegedly made by Mrs Plenty at the time of Mr Plenty’s assault charge was a comment Mrs Plenty was supposed to have made to counsel representing Mr Plenty. Pastor Burton agreed that Mrs Plenty was not told that this was the basis of the allegation.
There are obvious differences in the versions given on behalf of the plaintiffs and Mr Burton. It did not appear that either the plaintiffs or Pastor Burton were attempting to deliberately mislead the court in their evidence. On the other hand, the relevant events occurred many years ago and it is to be expected that memories have faded. Mrs Plenty had a reasonably good memory of relevant events and, for the most part, I found her evidence to be reliable. Mr Plenty’s recollection of events was not as good as that of his wife. Pastor Burton’s recollection was not as extensive as that of Mrs Plenty.

The disputes involving the plaintiffs within the church had been in existence for a long time. However, I have no doubt that the allegations set out in the board letters of 26 November came as a considerable shock to the plaintiffs. They were expressed in broad terms and I have no hesitation in finding that the plaintiffs began seeking further details as soon as they received the letters. The significance of the conviction for assault was clear enough, but the remainder of the allegations were vague. It is true that Pastor Burton and the plaintiffs had discussed various issues from time to time including matters which were connected with the allegations. However, these discussions fell far short of acquainting the plaintiffs with a clear idea of the basis for the formal allegations which were made in due course.
The only way in which it is suggested that they came by further information was through Pastor Burton when the plaintiffs spoke to him on the Tuesday. It is not in dispute that the plaintiffs asked for further details of the allegations at this meeting. I accept their version that they were given almost no information in addition to that which was in the letters. I accept their version of the conversation in preference to that of Pastor Burton. In my view their recollection of the conversation was more reliable. I find that Pastor Burton’s general attitude was that any more detailed discussion was best left for the church business meeting. It would seem that, as a layman, he was not aware of the importance of equipping the plaintiffs with sufficient details of the allegations to enable them to properly represent themselves at the hearing. As an example of this, he conceded that he purposely refrained from acquainting Mrs Plenty with the basis of the allegation that she had made false statements at the time of the assault hearing. This was a serious allegation against Mrs Plenty, but it would appear that Pastor Burton considered it appropriate to wait until the church business meeting before the details were revealed.
As I have pointed out, even on Pastor Burton’s version of the conversation very little information was provided to the plaintiffs at this meeting which would have been assistance to them in defending the charges.
I have said that on Wednesday 28 November, the day following the meeting with Pastor Burton, the plaintiffs wrote to the board to explain why they could not attend the church business meeting. The letter was discussed at a board meeting on Thursday 29 November. The next day Pastor Burton and a church elder, Mr Johnson, went to see Mr and Mrs Plenty at their home. Mrs Plenty said it was a short meeting. She said Pastor Burton came to advise them that he had seen a policeman about the suggestion that the court case was sub judice. The policeman said this did not present a problem. Pastor Burton said the meeting would go ahead and the assault conviction would be discussed. Mrs Plenty said they again asked Pastor Burton to tell them what it was all about, but received no assistance from him.
Mr Plenty said that the main information which Pastor Burton wished to relay at this meeting was that he had spoken to the policeman about the matter being sub judice. Pastor Burton said the matter was still going ahead. Mr Plenty said he asked again for information about the charges, but was told to come along to the meeting and find out.
Pastor Burton said that this meeting took only five or ten minutes. He said he informed Mr and Mrs Plenty that the Board had discussed their letter the night before and felt that their grounds for not coming were not acceptable and that the meeting was to go ahead. He also said that he had discussed the matter with a police officer who told him that the Plentys could not rely on the suggestion that the assault matter was sub judice. He said that as they were leaving Mr Plenty said there was no way he was going to subject himself to a kangaroo court. I am not prepared to read into this comment an assertion that Mr Plenty would not subject himself to a hearing in any circumstances.
Mr Johnson, the church elder, gave evidence. He said he was asked to see the Plentys with Pastor Burton. He was vague as to when the meeting took place, but it would seem that the only occasion he could have attended for this purpose with Pastor Burton was on 30 November. He said he and Pastor Burton explained to Mr and Mrs Plenty that it was important they should attend the meeting. Mr Johnson said some other matters were raised at this meeting, but he had no clear recollection of them. I have little doubt that Mr Johnson was a truthful witness, but his recollection of these events was so poor that little weight can be attached to his evidence.
I have said that there is a conflict of evidence within the defence case concerning certain events which took place after the church had taken advice and been told that it was inappropriate to continue with the charges associated with the assault conviction.
Pastor Cobbin said in evidence that he went to Pt Pirie to attend the board meeting on 29 November. He said that it was at this meeting that a decision was made to reduce the charges and exclude the assault matter. He said he received advice on the issue from the President of the Trans-Australian Conference of the church and he thought he might have taken further advice from the church’s solicitor in Sydney.
According to Pastor Cobbin, the decision to reduce and amend the charges in the manner to which I have referred was discussed at the meeting of 29 November and he said he instructed Pastor Burton and Mr Johnson to visit Mr and Mrs Plenty and advise them of the decision to exclude the assault matter.
Pastor Burton said in evidence that Pastor Cobbin did not tell him after the meeting of 29 November to advise the Plentys that the assault matter would not be discussed. He said the decision at the meeting was that the matter should go ahead with all of the original allegations. He said Pastor Cobbin told him to advise the Plentys that this was the decision at the meeting. Pastor Burton said that Pastor Cobbin later rang him at about 4.00 pm on Friday 30 November and said that they should not proceed with the assault matter because of the advice given by the church authorities in Sydney.
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.
It is not to the point that Mr Plenty might have incorrectly contended that it would be a contempt of court for the hearing to go ahead. The fact is that he considered it inappropriate for the meeting to be held when the appeal was only a few days away and the church authorities eventually reached the same conclusion.
It is also my opinion that Mr and Mrs Plenty were justified in raising concern about dealing with the disciplinary matters when the appeal was pending. The assault matter was an important issue in the allegations made against both Mr and Mrs Plenty. It was clearly not the intention of the church to establish the commission of the offence by evidence as to the facts. The church was relying on the conviction itself. The conviction was the subject of a pending appeal. The urgency of the hearing before the church business meeting was not such that it was necessary for it to take place before the appeal process had been completed. As I have pointed out, the advice which the church was given before the meeting confirmed the stance adopted by the plaintiffs.
The failure to advise the plaintiffs that this major obstacle to their attendance at the meeting had been removed is perplexing. But whatever the reason for it, this consideration is of significance in evaluating the relevance of their refusal to attend. Mr Kourakis QC argued that the onus was on the plaintiffs to come to the meeting, request further particulars and, if necessary, apply for an adjournment. In the first place, this option is not an answer to the requirement that the plaintiffs be provided with sufficient particulars before answering the charges and allowed sufficient time to prepare themselves. In my view it was reasonable for the plaintiffs to refuse to attend the hearing at a time when the conviction was under challenge and I think there was unfairness in not advising the plaintiffs that the charges would be reduced and that the assault allegation would be withdrawn. In their state of knowledge the impediment to a properly conducted hearing at which they could defend themselves remained. They should have been given the opportunity to reconsider their decision not to attend in the light of the changed circumstances.
Mr Johnson said in evidence that at the meeting he attended with Pastor Burton and the plaintiffs on 30 September the suggestion was made to the plaintiffs that they could attend the church business meeting and take part in the discussion of matters unconnected with the assault conviction, but not take part in the discussion on the conviction. If this was said, I am of the view that the suggestion was impractical. If the allegations relating to the assault conviction were to remain then an opportunity to defend them properly was also essential.
It was argued that the objection which the plaintiffs advanced for not going to the meeting was not genuine. I reject that argument. The problem of dealing with the assault matter at the disciplinary hearing when the appeal was to be heard within a short space of time was raised by the plaintiffs in their first written response to the allegations. I also accept that Mr Scragg suggested to them it was inappropriate for the defendant to consider the assault matter at this time. The church authorities reached the same conclusion.
It is inappropriate to compare the plaintiffs’ position in this respect with the well defined procedures for adjournment applications and requests for further particulars which are available in court proceedings. The plaintiffs’ objection was handled in an informal manner. They objected to a hearing which incorporated an inquiry into the assault matter and they also asked for details of the charges. I have found that they were not given proper particulars on request and it is common ground that their argument in relation to the inclusion of the assault matter in the charges was accepted. However they were not told of that decision or advised of the changes to the allegations.
The hearing into the allegations took place on the Saturday evening. At the hearing the charges were altered in the manner previously described. Apart from the removal of the assault matter, there were changes made to the wording of the charges which remained. In the letter of 25 November which advised Mr Plenty of the charges against him, the first charge alleged disorderly conduct but no particulars were given. The second charge alleged wilful and habitual falsehood consisting of “(a) the assault matter and (b) subsequent correspondence relating to the above as appearing in Board papers”. The first charge after the amendments now read “disorderly conduct which brings reproach upon the cause of God eg. letters written to the newspapers containing exaggerated accusations”. The effect of this amendment was to alter the charges by alleging, as particulars of disorderly conduct, matters which were originally assigned as particulars of wilful and habitual falsehood. In short the letters written to the newspapers were now being used as the basis of a charge of disorderly conduct instead of the basis for a charge of wilful and habitual falsehood which was abandoned.
A further matter was then added, namely, “attitude toward those in authority”.
Presumably this was meant to replace the original charge which read:
“Persistent refusal to recognise properly constituted Church Authority or to submit to the order and discipline of the church.
eg. Church Board letters.”
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”.
It is recognised in the manual that disfellowshipping should not take place unless the instructions in the disciplinary section of the manual are followed. Those instructions which are set out elsewhere in these reasons are analogous to the obligations imposed by procedural fairness at law. They include due notice and the right to be heard in one’s own defence.
The requirements of procedural fairness include sufficient notice of the nature of the allegations which the plaintiffs were required to meet. The degree of particularity called for falls to be assessed against what was required in order for the plaintiffs to properly defend themselves. Particulars are also necessary in order for the decision-making body to be aware of the nature of the conduct which is the subject of the enquiry (Robbins v Harness Racing Board [1984] VR 641 at 645).
It must be acknowledged that in these respects domestic tribunals are not to be placed upon the same footing as criminal courts. Regard must be had to the fact that charges are laid and issues are decided by persons who are, for the most part, untrained in legal procedures. Nevertheless, natural justice requires the adoption of procedures which meet the basic requirements of proper notice, time to prepare and a fair hearing.
The requirement of sufficient particulars is of particular importance in the present case. Many of the authorities on particulars arise from the charging of offences or breaches of discipline with broad descriptions such as “misconduct” (R v Solicitors’ Disciplinary Tribunal [1988] VR 757 at 768); and “conduct detrimental” (Hughes v Johanson [1977] Qd R 357).
In such cases the person whose conduct is brought into question must be given more precise particulars to meet the requirements of sufficient notice. This is so in the present case. Broad allegations such as “disorderly conduct” and “attitude towards those in authority” which were used in the present case required particularisation which I find was not forthcoming.
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.
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.
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.

It is considered that under these circumstances church boards considering discipline of members under paragraph 7 would be unwise not to seek the counsel of the conference/mission president before decisions for recommendation to the church business meeting are taken.

[2003] SASC 68

10 March 2003